Learning aims week 1 – What are Fundamental Rights in Europe?
After this week, you must be able to:
Look at the lecture and extra assignment in tutorial, the summary is not complete, only the learning aims are discussed.
What are human rights?
= A human right is a human interest (= belang) that becomes very privileged. There are special procedures for
this kind of rights and there are also particular techniques. The protection of human rights is important in many
modern constitutions.
The role of court is crucial; courts can declare a policy valid (= beleid gelding) of can declare legislation (=
wetgeving verklaren).
Human rights are, in the first-place rights. This means that they entail obligations (mostly for states)
and rights (that mostly citizens are entitled to);
Human rights are limits to coercive (= dwingend) power;
Human rights are a high priority. This element speaks for itself; it is not without reason that an interest
is being called a (fundamental) right;
Human rights constitute a language to address injustice.
Fundamental rights Human rights declarations (French, American), Charter of Fundamental Rights,
European Convention of Human Rights, National Constitutions, Natural law/natural rights.
(A) Describe the development of fundamental rights in Europe;
Declaration of Independence (1776)
= We hold these truths to be self-evident: that all men are created equal, that they are endowed by their
creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.
Declaration of the rights of men (1789)
= Men are born and remain free and equal in rights. Social distinctions may be founded only upon the
general good. The aim of all political association is the preservation of the natural and imprescriptible
rights of man. These rights are liberty, security, and resistance to oppression.
Olympes de Gouges, France (1791)
‘Mothers, daughters, sisters [and] representatives of the nation demand to be constituted into a
national assembly. Believing that ignorance, omission, or scorn for the rights of woman are the
only causes of public misfortunes and of the corruption of governments, [the woman] have
resolved to set forth a solemn declaration the natural, inalienable, and scared rights of woman
(…).’
‘Woman is born free and lives equal to man in her rights. Social distinctions can be based only on
the common utility.’
Generations =
First – civil and political;
Second – economic, social and collective rights;
Third – solidarity and collective rights;
Fourth? – human rights as they apply in digital lifeworlds?
(B) Reflect on the legal, political and social significance (= betekenis) of human rights;
,See the introduction.
Civil and political rights = these require protection against executive action ( = uitvoerende
handeling/actie).
Social and economic rights = these are less universal because they constitute standards that depend on
the level of economic development.
(C) Differentiate between different sorts of human rights obligations (respect, protect and fulfil);
Human rights are rights and hence (= vandaar) they entail obligations and rights. States are being referred
to as duty holders, which means that they have positive and negative obligations that can be divided in
the obligations to respect, protect and fulfil.
The obligation to respect is a negative one. States are obliged (= verplicht) to interfere (=
onderbreken) with the enjoyment of rights;
The obligation to protect is positive. The state should prevent that others interfere with rights;
The obligation fulfill is positive as well. This means that states should create the appropriate
environment in which can be enjoyed, so for example: ensure there is enough safety.
Individuals are rights holders.
(D) Distinguish (= maak onderscheid) between the legal orders of the Council of Europe and the EU;
Council of Europe European Union
Kind of institution: It is an international organization. You It is kind of a state. The EU is not a
can look at the Council as an federative state, but there are similar
association of states who made a features with a state.
range of influential treaties but
continued being sovereign facing the The EU has its own legal order, for the
other. advantage of which states have
limited their sovereign rights.
Participating states: Has 47 Contracting States, including all Has 28 Member States.
Member States of the European
Union.
Product: Produces treaties, like the European Produces governance (= bestuur) and
Convention of Human Rights. legislation, while it is based on treaties
like the Charter.
Role of the courts: European Court of Human Rights Court of Justice of the European Union
(ECtHR) applies and interprets the (CJEU) applies and interprets EU law.
European Convention of Human Rights Is located is Luxembourg.
(ECHR). The ECtHR is in Strasbourg.
Lecture information EU vs ECHR
,European Union =
Is a supranational legal order which was established as an economic cooperation. The EU has 27 Member
States. The CJEU is located in Luxembourg. The legal effect of EU law in domestic legal orders contains the
direct effect (Van Gend en Loos/Van Duyn) and supremacy (Costa/ENEL) as EU law is supranational law.
ECHR (1950) =
Is a treaty signed by the Member States of the Council of Europe. The Council of Europe has 46 Member
States. The ECtHR is located in Strasbourg. The legal effect of the ECHR in domestic legal orders is referred
to as ordinary international law. It depends on the national constitutional law whether the concept is
monism or dualism.
Monism In a monist system you can appeal directly to international law as an individual when
the provisions are suitable to do that.
Dualism In a dualist system, you need another system to apply the international law, there is a
strict division between the national and international order.
Lecture information Council of Europe
The Council of Europe is an international organization and was established in 1949 by a group of ten states
to promote democracy, the rule of law and greater unity among the nations of Western Europe after
Second World War. Until 1990, when the Cold war ended, it was a confided to western Europe, but today
it has 47 Member States.
There are conditions for admission (= erkenning): a genuine democracy that respects the rule of law and
human rights, and you have to be party to the Convention. The ECHR is an instrument of the Council of
Europe.
Important institutions of the Council of Europe:
Committee of Ministers
Parliamentary Assembly
The Congress of Local and Regional Authorities
The Commissioner for Human Rights
The main goals of the Council of Europe are the protection and support of human rights and
parliamentary democracy. To mees these goals, the Council drafted the ECHR in 1950, and it entered into
force on 3 September 1953, and the European Social Charter(ESC) that entered into force in 1965. The
ECHR contains mostly political and civil rights, and the ESC contains mostly social rights.
Lecture information Council of Europe/ECHR
The Convention established the first international complaints procedure and the first international court of
human rights where individuals could claim their rights if they felt like the national judge didn’t respect
their rights and the individuals became a subject, an actor, in international law. It transformed the abstract
human rights ideals into a concrete legal framework.
There were concerns over ‘’sovereignty’’ and legitimacy because courts are not a democratic institution,
and a court has to decide about a policy made by a national government that can be based on national
legalization. That raises questions about the role of the judge and its legitimacy, even more when this
judge is international, when it has to declare national law unlawful, and this law has been made by
democratic procedures.
The Convention contains Articles with civil and political rights and additional Protocols that protect more
rights for extension of the provision. The Convention contains human rights and fundamental freedoms in
Europe, and it has also established an enforcement mechanism trough the ECtHR. As judicial organ of the
Council of Europe, it provides protection against human rights violations.
, The right of individual petition is one of the most effective means of protecting human rights. It is an
essential element of the supervisory system established by the Convention. the Convention protects the
rights of individuals (natural or legal person), but not groups as such. This petition is an example of that.
Only parties who are directly affected by a violation of the rights may bring a claim to the court.
Sources of EU Law =
Primary law
The Treaties
TEU: general provisions defining the Union;
TFEU: specific provisions with regard to EU institutions and policies.
The Charter of Fundamental Rights of the EU
Same legal value as the Treaties.
Secondary law
Made by the Union institutions;
Legal acts in Article 288 TFEU;
Regulations;
Directives;
Opinions;
Decisions.
(E) Explain the role of the ECHR in the EU legal order;
The Convention contains Articles with civil and political rights and additional Protocols that protect more
rights for extension of the provision. The Convention contains human rights and fundamental freedoms in
Europe, and it has also established an enforcement mechanism trough the ECtHR. As judicial organ of the
Council of Europe, it provides protection against human rights violations.
The EU is not part a party to the ECHR. Member States are parties to the ECHR. Rights protected by the
ECHR can provide general principles when applying EU Fundamental Rights (Hauer).
Article 6(2) TEU: ‘The Union shall accede to the European Convention for the Protection of Human
Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in
the Treaties.’
(F) Read judgments of the European Court of Human Rights (ECtHR) and the Court of Justice of the EU
(CJEU).
Read the judgements, and search at similarities, the questions seams similar to the judgements.
Van Gend en Loos (direct effect on primary law) =
Can EU law be directly invoked in a national court?
A treaty has direct effect in national courts if it is ‘sufficiently clear and unconditional’. Van Gend en Loos
says something about treaties only.
Why direct effect?
There is a direct effect, because the subjects are not only states, but also individuals. EU law is intended to
give people rights, and without direct effect, states could block those rights. This is a big clash with
