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Volledig samenvatting Human Rights (eerste zit geslaagd)
- Établissement
- Katholieke Universiteit Leuven (KU Leuven)
Volledig samenvatting International and European Human Rights Law (eerste zit geslaagd)
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Ikrame B HRLINTERNATIONAL AND EUROPEAN HUMAN RIGHTS LAW
Examen: 1 openvraag = essay waar je inzicht moet vertonen + een casus waar je een bepaalde situatie moet
oplossen.
Class 1 – 30/09/2021 (introduction)
When it comes to HR, we may feel like we know what it is, but after deeper digging we can
realize that we don’t really know what we’re talking about. Is the classical def a useful tool to
make a difference between a “normal” right and a “human” right.
If someone decides that a right becomes a human right, the question becomes “which are the
features of humanity? What is it to be a human being?”
This is philosophy more than law
Up until today there is no cohesive of Human rights. For lawyers the main point is to go and
have a look at the text. Many of the questions judges deal with today are ethical questions.
Mentalities changed; judges take a different view on questions. Many changes were
incorporated through debates (not necessarily a legal debate) and case law: we make law for
the society, but the society fuels us.
The concept is clear, the conceptions may be less clear. The reason behind this, is that you get
two stories that are related to historical development. So we will see two major ideas of HR.
I. Human rights are there to limit the power of public authorities. It’s a limitation
of (state) power: this idea is where human rights and the protection of human rights,
is related to the idea of constitutionalism.
II. Human rights are there to protect human dignity: Human dignity is the possibility
for people to live a life in dignity. We see in so many bills and conventions that the
concept of human dignity is important.
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An example to illustrate the concept of human dignity: ‘Wackenheim against France
case’: It is also known as the dwarf tossing case. It goes back to the 90s. Back in those
days, there was some trend that people would go to local fancy fairs (what we call
‘Kermis’). One of the attractions was the so called “Dwarf Tossing”. Basically you had
dwarves who were protection gear and then people, who were presumably drunk, throw
away this person. The one who threw the furthest, won the competition. So it was literally
playing with people, that was the attraction. But since it is France, everything is permitted
if you have a permit. And you basically need a permit to do everything. The French say by
nature “non”. So here we have a local authority saying that this specific activity can’t be
exploited in that village. The point is, you need as a local authority an argument to say
‘no’, you need a legal argument (and not: it’s not fair). The problem of this French mayor
was that he could obviously not come up with a strong, positive legal argument, so his
argument was that this kind of activity is a violation of human dignity. That is what it is.
Because according to the mayor, he says this thing is laughing at people with diseases, and
you can’t do that. Mister Wackenheim, who was the artist, didn’t agree. He said “what the
hell is this, who’s human dignity do you think you are protecting?” And then of course
you had a completely different narrow (?), because the argument of Mister Wackenheim
was, that precisely because there is something as Human dignity, he has the right to
choose his profession, to decide how he is going to make his living. He’s argument is, I
make a lot of money engaging in this activity, and people with disease would most
probably not find a very suitable job on the regular job market. So I have here an
opportunity to do what I like to do. You may be extremely upset about this but this is what
i want to do. He brought this case to the conseil d’état. But then he lost it, then he went to
the Strasbourg court. There is was declared inadmissible for a technical reason: because
the lawyer. Then they went to the UN comity on civil and political rights and then the
comity found that there was a kind of difference in treatment but that it was based on an
objective criterion and that the mere fact that other similar activities were not forbidden,
was not a sufficient reason and a reason to conclude that there was a violation.
By using the term human dignity what you do is through the back door comes back in the
majority rule. Because if we say that some of the activities, we don’t want to see protected,
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we don’t like, ... we say are in violation with human dignity, isn’t that saying: it goes against
what a majority thinks is the right thing to do? And so if a moral majority think that is a bad
thing, then we forbid it. Even if people think/say that I do want to work as a sex worker. This
is one of the things you should be reflecting on.
The point that is an extremely difficult issue is being given by the French people when they
voted some years ago, afterwards also in Belgium, the ban on concealing the face in public
places, known as the Burka-ban, now if you go and read the articles, used to defend the ban,
in the parliament came out the notion of human dignity and it was so that the French said in
the debate “don't use human dignity”, they said this in the parliamentary readbook. Why?
Because we don’t want to come up, once again with the whole discussion we had already in
the Wackenheim case. The wackenheim case is for public lawyers in France something like, if
you can escape it, please do it because you will get bigger and bigger into troubles.
Nevertheless, we use human dignity and we use it a lot.
Some scholars, when it comes to Belgium law, saw before article 23 (1993-1994) was
incorporated into our constitution, Belgium legislation hardly ever mentioned human dignity.
And then you see and exponential explosion of human dignity, and then you see as well that
in human rights, it has become a very popular concept, especially after the second world war.
Why? In so many cases we ran out of legal arguments and we still want to forbid or restrict
something and since we can’t really pinpoint the problem, we just use human dignity. It
sounds good and the first who say something is a violation of human dignity wins somehow
the debate. You need to first to agree on human dignity and it is difficult to agree on that so it
is basically it is a little bit daft.
SO important is that we should realize that HD comes with a price. And the price is that we
give room for interpretation to judges.
If we have a closer look at the categories of human rights, we see that scholars usually
divide them into three categories of human rights, also called generations of human rights,
because there is an historical dimension. Some are the oldest ones, others are more recent.
1. The first generation of HR are the political and civil rights and freedoms: Civil
rights are rights for everyone. Political rights, as you know, the capital of rights
reserved to citizens, nationals and procedural rights, think of fair trial and so on. These
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rights are basically or they have in common that they have a duty for public
authorities to abstain or to reframe. So in other words, first generation rights are
rights of no interference and that is where you can really see the first point of HR:
PROTECTION. In the first generation rights we really see the concept of human
dignity.
For the first generation rights we have to go back to the Magna Charta, 1215, and we will go
back to charters in our region. Think about the ‘Blijde Inkomststraat’, the street that you use
with your bike all the time. It is the ‘joyeuse entrée’, ‘joyful entry’ and these rights in the
Medieval charters. And what does these have in common? They have in common the very
idea that the authority of the state, be a duty, can be restrict and this developed further. The
Glorious Revolution, the Bill of Rights in England.
Then you have the French Revolution, 1789, and what distinguish the American Revolution
of Coals with the American constitution and the Bill of Rights, 1791. And why is that
American-French Revolution so important? Because, there what you see, is for the first time
you get a comprehensive approach to fundamental rights. Medieval charters were often
based on giving rights, not in a comprehensive way, these are not catalogues of fundamental
rights, but they protect some rights, some aspects and they protect some categories of people
and that can be the nobility, can be widows, can be orphans, can be soldiers, and so one, but
there is not a general, abstract idea that is expressed so well in the French Declaration. It
says : ‘Tous les hommes sont nés libres et egaux en droit’. It says : ‘Every men’, and it does
not refer anymore to this specific type of people, a specific category of people. ‘Everyone is
entitled to these rights’.
What you see is a mainly focus on non-interferences. So, you have freedom of expression.
That means: the state is not going to interfere. You have freedom of religion. Everyone can
be catholic or maybe everyone is Jewish, but I can be a pastafarian. I have that right and you
can be a pastafarian. It means protection the right to live, that means that the state will not
interfere with your life. That means the right not to be torture. The state will not interfere with
your physical and mental comfort. Obviously, fair trial rights are entail obligations to state.
You have to develop a legal system that is fair and respects minimum rights. But essentially it
bowls to say to a state: do not interfere. So these are liberal rights, liberal understood in a very
mass interpretation. But there is criticism to that and this criticism comes up in the last quarter
of the nineteen century. It’s voiced by boxes thinking, by social democrats, by critical thinkers
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