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samenvatting human rights law: documenten op toledo +pp + lesnotities 14/20
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- Katholieke Universiteit Leuven (KU Leuven)
samenvatting human rights law: documenten op toledo + lesnotities 15/20
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INTERNATIONAL AND HUMANRIGHTS LAW
,Inhoud
I. Info over het vak
Andere wetteksten buiten VRG-codex meenemen naar examen
Lees alle cases dat vermeld zijn
De principes zijn heel duidelijk uitgelegd daar
Cases& materials
- Straatsburg casussen lezen
- learning to read case law: engage and criticize it
- cases& materials niet meenemen naar het examen
Examen
- 2 open vragen
1) Paul Lemmens: essayvraag
=> to think about the class: not only reformulating: engaging in a critical way
2) Case: ficticious story bring it to the court: suppose you’re the state: what is your
argument?
= capacity to solve a case & why
- references to cases discussed in class and in the reader
Reader Acco
- enkel wat besproken in de les
The dates of cases will not be aksed
The idea of cases is important,
II. Introduction
1. Concept of Human Rights
1.1 Fundamental rights
Common characteristics
Human rights are a powerful narrative
= Everyone has human rights even if you violate the human rights of others
- Broad concept expand to all fields in human life
! Criticism Fernand Ceuleneer
Human rights in diffent contexts: lawyers, politicians etc
We all have a feeling we are talking about
once digging deeper: noise& misunderstanding: what we are talking about is not
necessary the same
- what is to be a human being?
- what are the features of humanity?
= philosophic questions (more than legal questions)
1
, Why are some rights human rights? Why are some excluded?
As a lawyer complicated and difficult to understand
What are human rights?
Naargelang uit welk perspectief ander antwootd
-Human rights as a combination of philosophy and law
- Nowadays law is only a part of the explanation: judges are also answering ethical questions
on right to law, abortion, marriages etc
= reason why courts change their views: the legal text is the same, but mentality is changed
= changes incorporated through case law Judges defined by society
Two major characteristics of human rights
Why do we need human rights?
1) limitation of state sovereignity
Human Rights are there to limit the power of authorities: avoid the abuse of authority
‘the duke, the king < the person in power’
= protection against arbitrary use of state power
= related to the rule of law: states are bound by the rule of law
‘It is about rule of law not rule of men’
French and American revolution
= related to the idea of constitutionalism
2) human dignity
= the possibility for people to live in dignity
1 is closely related to 2!
- popular after WOII
= incorporated in Art 1 German Constitution
In Belgian law very late: 1993 more controversial topic
< social and economic rights
explosion
historically related to Naziregim: many of the crimes committed were legal: the positive
approach had some lacuna: how can you fill that lacuna referring to human dignity
Even if certain behaviour was lawful under the legislation in place at the moment you could
know that it violates human dignity
- to soften law or to fulfil a lacuna
more difficult: what criteria’s to define human dignity?
H.R.Cttee., 15 July 2002, Wackenheim v. France, no. 854/1999.
= case on human dignity
People with diseases exposed: drunk people launching dwarves worn in special clothes
< France: you need a permit for that
making fun of someone from someone with a genetic disease: unethically & unacceptable
Le maire (burgemeester): wants to refuse the permit, BUT you need a legal ground
- public order, public health? There was no ground
SOL: It violates human dignity
Wackenheim disagrees: I am short myself and this is my profession: human dignity is the
right to choose your way of your life and your job: I prefer this kind of job: who are you to say
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, that is unworthy? Which dignity: the dignity the person concerns? The majority of person
concerns?
→ Attraction “dwarf tossing” on fairs (= competition who throws the dwarf the
most far is the winner). A France major (local authority) gave no permission for
this attraction with the legal reason that this attraction is against human dignity
(laughing with a disease).
Argument of Wackenheim: “I create jobs for a category of people that have
difficulties finding a job.” and dwarfs deliberately decide to join the attraction
I want to work as a sex worker: that is my choice <-> law: forbidding certain kind of ways
= human dignity problem
decision of the Court: Not every differentiation of treatment of persons will
necessarily constitute discrimination, which is prohibited under article 26 of the ECHR
→ In this case there is no discriminatory purpose.
If human rights are protecting individuals against majorities and state powers than using a
concept as human dignity?
Human dignity can mean everything and nothing at the same time: the perception of human
dignity is changeable
Wackenheim illustrates that
As a academic: human dignity can mean everything and is far of being a help, but as a
judge I was sometimes so happy we had human dignity: if the law is unfair and violating
human rights but I couldn’t say exactly why I was so happy to refer to human dignity
Judges give content to the concepts, to compensate the vage stuff made up by politicians
Difficulties finding a definition that work in all cases
E.g. Ban on concealing the face in public places (bourka) lead to a discussion in the
parliament
→ France, in aftermath of the Wackenheim-case: “Don’t use human dignity as an
argument.”
Human dignity is frequently used in legal cases, also in Belgian legislation, especially after
WW II (World War II).
→ Used when we want to restrict or forbid something and run out of legal arguments.
There are many definitions of human dignity, cf. Paul Martens.
Conclusion: The concept of human dignity can be used, but it comes with room for
interpretation for judges.
→ Political choice to use an open term to be filled in by judges
Importance of historical developments
- De Blijde Inkomst
- Magna Charta 1215
- Charter van Kortenberg
Limiting the power of rulers: their privileges
captatio bene volentia
3
, They protect categories of people: no women protect but widows, no men but soldiers:
citizens are not protected
= categorical and incomplete but a first step
- English parliamentary revolution: each time the parliament gets more power, the king loses
power: important for democracy and personal rights
- Glorious Revolution
Categories generations: refer both to a different concept and they refer to a chronological
order
Are all human rights fundamental rights?
Cf. Universal declaration of Human Rights (1948).
There is a tendency of human rights to expand:
o New rights are coming up
E.g. environmental rights
o Existing rights are given a scope that goes far beyond the traditional understanding of the
right at stake.
Problem: Once agreed as a court (or as a legal authority) that some issues fall within the
ambit of human rights protection, it becomes extremely complicated to say some years later
that we do not think this is so important.
Further developments – Need for a “quality control” (Philip Alston).
→ Above problem is a complication for the idea of a quality control of human rights.
Quality control = idea to make a hierarchy in human rights
This idea is in conflict with the opinion that all human rights are entangled with each
other.
Problem of majority opinion to what is the most important in human rights.
Cf. Issues are more important to people for whom it is part of their identity.
Categories of human rights
The first generation
The American and French revolution connected: 1789 1791 (Amendment to American
Constitution)
political and civil rights
= freedom and procedural rights
freedom of thought, freedom of the press, freedom of religion, privacy and protection of
home: you cannot enter my home without a permission, property: onteigenen enkel mogelijk
onder voorwaarden
fair trial, right to live (no torture)
= inspired by same thinkers and philosophers and politicians
= first document using the word human rights: declaration de droits des hommes et citoyens
We are criticizing the power of the sovereign: how come that one person has the right to
impose rules on us? Why do we need to accept that? Are their limits? Shouldn’t we rule
ourself through people we choose ourselves
Limitations to state power HOW? Political participation
= defensive rights
Stay away
4
,Men are born with this right
1) Rights as a human being
2) Rights as a citizen: a member of a political community
People living together with others: our relation with others as the big challenge
Enjoying freedom together with others
Citizen idea highlights that you’re not just a human being, but a human being living in a
community
Droit des hommes et du citoyens
-19th century: the era of democracy = the next step in the process
CONSTITUTIONS imitating catagolists of human rights
Which rights first generation rights
= afweerrechten
= ‘stay away right’
This is my area of freedom and liberty and you as authority should not come here
Medieval
‘My home is my castel’ = protection of privacy and property
However poor a person can be you’re a king in your private sphere
19th century: freedom of expression, freedom of religion, habeas corpus, fair trial
= stay away
= the development of minimal state
= nachtwakersstaat
= house keeper state
The state does the minimal state (protection of property and personal integrity: we need an
army, but all the rest should be done privately)
Duty for public authorities to refrain from intervention: rights of non-interference
Original purpose= protection of some rights (liberal rights) and some categories of peple
19th century: Expansion to “all people”
Reaction: = second generation:
= participation rights: economic, social and cultural rights
Marxists and social democratics: opinion influence by socialism: attention to circumstances in
which rights are exercise lead to development of 2 nd generation rights
Those first generation are so important but isn’t that a very formal conception of living and --
being human
Fundamental rights only for the bourgeoisie?
What is the freedom of expression: what is value of that for people that cannot read? Or if
you don’t have the means to buy paper and inkt?
If you’re first struggle is to survive wouldn’t you think that much of the rights mentioned are
a little bit concerns of a second nature
States have not only duty to stay away BUT states have an obligation to intervene = the
duty to provide and take care when it comes to social and economic rights
the right to education, the right to have paid holidays, the right to rest, the right to have
access to cultural, the right to work in good circumstances, right to school, to right to annual
5
, holidays, school system, labour law legislation
= also fundamental
The status of the State changes: enemy partner
the state becomes a partner that has to help to realise these rights: providing those services
and finance the other people that provide these services: the state has obligations to fulfil
directly or indirectly
The State has positive obligations: social democratic conception of the State
public funding of KUL
Right of expression only meaningful if you are in the material or intellectual condition to
enjoy the right
If people do not have the food all other things are illusional
= altered relation to public authorities
BUT economi dimension: to what extend can material arguments (budget) be used in this
debat
Solution: progressive realisation (because of budgetary impact, political choices)
Third generation
= collective rights solidarity rights
80’s: origination of rights exercised by groups, not individuals
peace and right to development
Question which duties they entale?
Which judge will be competent to decide on the claims?
Who is going to bear the consequences of this rights?
You cannot just give the protection of human rights to states only: if states fail to do their job
their should a place where you cannot complain about the misbehaviour of states
= birth of international human rights
Self determination, peace, the right to development, environment
We are moving further away from the classic definition
Constitutional rights: protected by constitution
Human Rights: protected by an international convention
NUANCE: Should you think in categories?
All human rights are equally important and interdependent
It’s artificial to make a distinction?
Human dignity: it is a whole
Human rights are interrelated
<-> pedagogically speaking: if you want to understand why people are nowadays critical
about human rights: helpful to understand the conceptual differences
- some conventions are only protecting first generation rights
- other purpose: stay away <-> you’re a partner
Stay away: easy to asses: did you intervene yes or no
You’re a partner: not black and white: more progressive realisation
Did you make an effort <-> the result
there is a budget: you should pending on this instead of that: the judge a politician in
deciding that
6
, What is enough sometimes a political question and difficult for the judge to answer (SDM)
-Even under first generation rights there can be positive obligations: sometimes the State will
be enforced to do sometimes
ECJ reads positive obligations in all rights (also in 1st generation rights)
Right to privacy (1st generation) is used in the sense of a 2nd generation right
! Nontheless there are conceptional differences!
- Secondary rights: the state should do sometimes: doing something not always fine: if I as a
State develop a health system I still cannot have a discriminatory health system
Those generations have not a Chinese wall between them
Doing and substaining serious consequences: when you bring it to court fundamental
difference: compliance with first generation rights is very easy: don’t do that : easy to check
<-> realising stuff: assessing whether you respect it much difference: “we did things” but did
you do enough?
= legally speaking there is a difference
CONSEQ: lot of criticism
First generation rights are budgetary very cheap <-> secondary: establishing a health system
are important investments
“I know I should do more but I simply cannot afford it”
What position should the judge take?
! Separation of powers!
2nd generations rights come with a price taxes
how to lower the cost of education to invest as a country
= conflict because people want the government to act, but they don’t want to pay taxes
Sometimes there is a conflict between non-interference and positive obligations, also in
European debates
SUMMARY
Categories generations: the concept of time
The generations refer to a different concept and chronological order
Allthough fundamental rights are a whole and interrelated, but there are conceptual
differences that must be highlighted. More difficult to understand if you don’t make
categories
- socially corrected free market
One of the major reasons in UN: difficult to find one treaty on social and economic rights:
those rights had specific supporters
Western: first generation rights
Eastern block: second generation rights
Universal Declaration without legal force easy: binding treaty very difficult
The consensus difficult to find at that time later decades
US <-> EU fundamental right
Obama Care: EU : good thing <-> US: let the market play: EU has more the feeling the State
has a facilitating role <-> the State should not intervene
- the right to reply: typical European thing <-> Americans do not agree: in breach with the
right of expression
7
, Different conception on the role of the State
Who are the holders of fundamental rights?
Human rights Human beings: individual citizens: individuals
= seems the logical consequence
= the enjoinment of human rights is given to everyone
= no need to be ‘regular’ in a state, just being under its jurisdiction is enough
sometimes different in wording but to find in lot of treaties
‘everyone’ <-> ‘all individuals’
BUT: Everyone without any further condition
You can make differences based on nationality but there is a common core of rights that we
enjoy that states have to respect and the fact that we failed to respect other legislation does
not exclude that
<-> ‘in pari causa’: if you fail to comply with something I may fail to comply
Everyone is entitled no matter what you did
BUT: sometimes distinction: political rights: aliens <-> nationals: the rights to vote
In the case of political rights a distinction can be made without being discriminatory : only
given to citizens
Also: private entities
Human rights is not only about individuals
The applicant can be company , corporations
freedom of expression and right to property
- they don’t comply my right to life is violated but for example: freedom to expression <->
advertising rules
- if you are a cultural organisation: freedom of assembly
- private company: right to a fair trial, freedom of property
Also: collectivities
Bearers of duty to respect fundamental rights
1) States
= historical evolution
= public authorities: governance, parliament, judiciary, decentralised authority, local
authorities
= vertical understanding: the individual against those in power
Only state parties can be brought to court for not respecting the ECHR
BUT: horizontal understanding? The horizontal application of human rights provisions
Dignity approach <-> arbitrary use of power: if rights respect dignity does it matter whether
it’s a private entity or a public authority: does it matter whether it’s the State tapping your
phone or Google?
Growing awareness: traditionally we meant behaviour of public authorities but now also
similar behaviour of private entities: cant we apply human rights horizontally?
There is a tendency of more and more horizontal effect, the offending of human rights by
fellow citizens
Underlying idea: Human rights are about protecting individual rights and human dignity
8
, The violation matters, not the qualification of the perpretator
Freedom of expression (tabloid) v right to privacy (movie stars)
Photos taken by paparazzi Which rights prevails?
- Violation right to privacy: state did not prevent the publication
- Violation right of expression: the other way around
There is no correct answer. The answer is always coloured by beliefs and open to
discussion. The human rights concept is so open and so vague that much can be laid into it.
case law can be found
the State and another person cannot deposes you, the prohibition to kill someone
PROBLEM: the other private party has human rights as well
Google: We own this: our property: we can decide who uses our platform <-> the right of
expression: little by little moving into antidiscrimination law: we are entitled to a human
right: two human rights conflicting
freedom of religion <-> discriminating by letting a couple of the same sex not letting buying
your apartment
Judges has to make a fair balance between those incompeting fundamental rights
privacy protection
protection of whistle blowers: confidential information <-> exceptions
E.g. ECtHR, 13 July 2004, Pla and Puncernau v. Andorra: the court was asked whether a will
could make a difference between biological and adopted children: some parties say they are
excluded from the heritage <-> biological link: son or grandson: could be interpretated as the
person with a formal legal or the one with a biological link: main question
- The Court could not argue: a will one of the most intimate things: should the law intervene
here and impose a certain concept of familythinking?
Even if this is not what you really want we interpretate that way because society wants it
that way
Horizontal understanding makes it very complicated
→ Interpretation of a will. Years later there is a discussion in the family on the fact
that when the testatrices made up the will, she meant by ‘children’ only natural
children of whether it could also include adopted children. And if not, whether
this could be a violation of the non-discrimination-principle.
E.g. ECtHR, 16 December 2008, Kurshid Mustafa and Tarzibachi v. Sweden, known
as “the Swedish satellite dish case”.
→ Internal rule in a Swedish apartment building says that no satellite dishes are
allowed. One could easily argue that satellite dishes are awful things and that this
is a reason not to allow them. But in an indirect way this is a rule to prevent
certain nationalities of people to rent an apartment in this blocs (discrimination).
This is a private relationship, but the duty to respect human rights can also be
applied here
Business in human rights
Sociological view point
We realise that although we constantly thinking about public authority, the world has
become much more diverse: it is not only a matter of individuals and state
New scholarship and rules are developed on corporate social responsibility and on business
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