Notes de cours
ALLE notities van de lessen van international and european human rights law
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- Katholieke Universiteit Leuven (KU Leuven)
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LECTURE NOTESCOURSE: INTERNATIONAL AND EUROPEAN HUMAN RIGHTS LAW
Introduction
the class is called ‘International and European human rights law’
however, the focus lies on the study of the European Convention on Human Rights (ECHR)
the exam
a written exam (2,5h)
one very open question: essay question (examples on Toledo)
a case: imagine you are the applicant/defendant/court, what would you decide?
o important: structure (your reasoning should be clear) and references
you can take the exam in English or in Dutch (it’s up to you)
what are human rights?
these are rights protecting fundamental freedoms
this is perhaps not completely wrong, but what have we learned...
these are rights that are related/inherent to being human
this answer is somehow a good answer, but what have we learned...
the problem with these answers:
neither of these answers would allow to help us determine if right X is a human right ‘yes’ or
‘no’
freedom of expression (95% yes), the right not to be tortured (95% yes), the right to paid
holidays (maybe some people would disagree on that), the right to leisure (is that a human
right)
we don’t have a very clear theoretical concept and understanding of the concept
many philosophers tried to come up with a concept of human rights that would typically
allow us to qualify or to disqualify claims in terms of a right being a human right ‘yes’ or
‘no’
the problem: some rights should be human rights according to these theories, but they
aren’t in practice OR a lot of practice is not covered by these theories
the point of the professor: as lawyers, we have on the one hand a very frustrating and
unsatisfactory answer and on the other hand a very pragmatic answer
maybe we can say: human rights are those rights that the legal system recognizes as such
where does the legal system recognize human rights as human rights
in constitutional texts, in international treaties, in conventions, ... (more after the
break), that’s why we will work with the texts in the class (these concepts are
evolving/dynamic !)
no one seems to know what we are talking about exactly
what are human rights for? what do human rights do?
the easiest answer: one narrative: human rights limit/restrict state power/sovereignty (history:
later)
,there is another narrative: human rights protect human dignity because people have human
dignity
almost the same as narrative one: state power cannot touch upon human dignity (art. 23
Gw.)
o Manuel Wackenheim v France (Morsang-sur-Orge, dwarf tossing and human
dignity)
the people of Morsang-sur-Orge wanted to toss dwarfs in a ‘fête foraine’,
but if you want to do something in France, you need the permission of the
mayor
the mayor of Morsang-sur-Orge: oh no, this runs counter to human dignity
(the mayor has no strong legal arguments, but thinks that this is
morally wrong
// the point that Paul Martens makes)
Wackenheim, the dwarf, appealed to the Council of State and later on to
the ECHRL: it is my human dignity to choose my own way of making money
the point that Wackenheim makes is a strong point:
he points on the contradiction, even though he won’t win the case:
I don’t care whether the majority thinks that this is a disgusting
activity, it is my way of making a life, I’m happy about it so let
me live my life
what about prostitution/sex work? (serious debate)
o it is exactly the same argument/reasoning:
no matter what other people think about the activities
engaged in, human dignity is also a matter of autonomy
o case: an ethical commission on advertising wants to remove Pommeline’s image
the image: Pommeline in bikini with a bottle of champagne for a casino
the ethical commission: there is no link between a woman in a bikini and a
casino and it is a violation of women’s dignity
whose dignity: the dignity in abstract of women defined by this
board or the dignity of Pommeline who can say ‘it is my autonomy
to decide how I become a public figure and how I make money in
advertising’
the point:
although human dignity is meant to protect people, it could equally be turned against
individuals, and it could become a concept of majoritarianism against individuals
it is not a black and white notion
Paul Martens: as a scholar I’m against human dignity, for I can see how much it can be
used against individuals, against minorities, but as a judge I’m in favour of human dignity,
because sometimes you feel that something is wrong, and you don’t have the very hard
legal arguments and then the constitutional judge is happy that there is a human dignity
to fill lacunes
the characteristics of human rights
do human rights have an absolute character?
meaning that human rights are the most important rights: there are no overriding issues
, that is overstated: some human rights can never be restricted (there are never any
more weightier interests at stake), but most human rights, however, can be
limited/restricted !
if human rights are that important/inherent to mankind, then they should be universal rights
philosophers: universality is a very complex issue
o there is a global diversity on the importance of some human rights
o if human rights are really inherent to men, then they shouldn’t alter in time
this universal character is not that defendable
you cannot waive your fundamental human rights (art. 6 Old Napoleonic Civil Code)
Big Brother is a way of waiving your own human rights (privacy), is that possible,
can you conclude an agreement in which you waive your human rights?
in reality there are a lot of agreements involving fundamental rights
you can make agreements involving human rights, but you can never waive them
entirely
o the importance of informed consent: you should perfectly know what you are
waiving
o you shouldn’t interpret article 6 in such a way that you can NEVER make
agreements involving human rights, BUT it means that you know the
consequences of partly waiving
the same thing applies to:
o concluding an agreement in which you agree to wear a certain type of clothing
(airlines)
o we have to be in class between 4-6pm: you could say this runs counter to human
rights
the history of human rights
predecessors:
o the English Magna Carta (1215): the oldest known human rights document
o and also: ‘het Charter van Kortenberg’ and ‘de Blijde Inkomst’
these medieval charters limit the powers of those that are in power (the duke, the
earl, ...)
o those that are in power give rights to certain categories of people
o the Bill of Rights (1689)(the parliament gaining powers, the King losing powers)
the major breakthrough: the French and the American Revolution
o the difference with the medieval charters: you see a profound critical reflection on
what is state powers (what is it to be governed? how can we explain that other
people can impose obligations on others? to what extent can our rulers rule? what
are the limits to sovereignty?)
o this is the result of critical enlightment thinkers (Montesquieu, Descartes, Locke,
Rousseau)
Hugo Grotius (the Dutch enlightment thinker)
etiamsi daremus: even if God doesn’t exist, human rights would still
exist
Déclaration de droits de l’homme et du citoyen: everyone is born free and equal before
the law
o this idea is later on included in the American Bill of Rights (1791)
this idea of a catalogue of rights is becoming incredibly popular and powerful (19th
century)
o constitutional rights are being protected (e.g., title II of the Belgian Constitution
(1831))
the biggest challenge of constitutional human rights: the States are the
protectors of human rights, but they are also the worst perpetrators of
human rights
an important question, that became very important after the second world
war: where are we going to complain if the States fail to do what they are
constitutionally obliged to do? we need international standards that go
beyond !
you need an international system in case the national level fails
o first, you need to exercise your national rights
, o if that fails, then you can go to the European/international
level
o national constitutional rights turn into international constitutional rights,
although in many instances, we are talking about the same right, but you have a
supplementary layer, so the system becomes completely multi-layered
the various generations of human rights
the first generation of human rights: the classic civil and political rights (< older
enlightment rights)
the authorities SHOULD NOT intervene
these rights go back to the minimal state of the 19th century: law and order
the advantages of staying away:
o it is easy to assess whether or not a State is complying with this obligation
o staying away usually doesn’t cost much (little budgetary impact)
this is an obligation of result
= the public authorities should STAY AWAY
the second generation of human rights: the social-economic rights (< social
democrats, communists)
the authorities SHOULD intervene to the best of their possibilities (state obligations)
idea: what is the point of freedom of expression, if you can’t afford to read (paper, ink, ...),
basically if you are struggling with life, if your life is boiling down to survival
o the material conditions in which people live matter !
examples: the right to education, the right to healthcare, the social security rights
public authorities should – through their activities and their fundings – contribute to an
environment in which all those services are accessible to the population (healthcare,
education, ...)
this is an obligation of means: you try to do everything you can, without necessarily
guaranteeing that everything will be there overnight (you can’t build an educational
system, hospitals in 2 weeks)
budgetary issue: public authorities need budget and means in order to act
progressive realization: it is a process, it is not black and white
= the public authorities should COME AND ACT (positive obligations)
the third generation of human rights: collective solidarity rights (60’s and 70’s of
the 20th century)
theoretically they can be distinguished from the first and the second generation of human
rights, in that they are enjoyed by a collective group of people, not by individuals as such
it’s about interests that are protected by human rights
we move away from the very classic ‘legal concept of right’ towards somethings that you
could call more and more ‘political and moral conceptions of rights’
examples: the right to self-determination, the right to peace, the right to development, ...
o sometimes environment and nature are also related to this generation of rights
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