Introduction

Question 1

What is the structure of the class?

Answer 1

1. Theoretical aspect: Concept of human rights and have some basic concepts that we will discuss, basic theoretical information you need when it comes to the theory of European human rights and the relation of human rights or fundamental rights with the domestically orders.
2. Institutional part: Panorama of what exists when it comes to the various international orders that exist. So, that means we have a very quick look at what is happening at the UN. We mention regional systems of human rights protection and we focus of course on the Counsel of the EU, which means the European convention on human rights.
3. Substantive part: the approach of capita selecta, we analyze some of the substantive human rights. So, rights protected under the EU convention mainly and we will address some of the issues of so shared economic rights.

Question 2

What is a human right?

Answer 2

• May be understood in many ways:
• Also, one of the reasons why there is such a criticism on human rights, not as much applauded as it used to be 20 years ago, a lot of criticism on human rights discourse and the evolution of human rights. And maybe one of the reasons is because it is a kind of notion that we often use in various contexts, in various understandings.
• Many understandings:
  
  • Legal, moral philosophy.
• In any way: it is artificial to separate all the different understandings of the concept –> it is also sufficient to only have a purely legal approach.

Question 3

What is the strict and broad sense of a human right?

Answer 3

• Strict sense: only after world war II: where you find international treaties protecting human rights as human rights. Before world war II: constitutional or fundamental rights.
• Broad sense: also include medieval charters because human rights have a historical pedigree, because we did not create them at that time. We need to understand historical pedigree as well.

Question 4

What is a first definition of human rights?

Answer 4

• Rights we have because we are human = that does not really helps us any further because it is so vague.
  
  • Indication that a strictly legalistic position to human rights will never be sufficient to understands them: you cannot just point to all the texts to understand all the human rights.
• We need to understand: why do we have these rights and why are these included?
  
  • Eg. in treaty it is not stated: everyone has the right to marry irrespective of gender.
• We need to understand the evolution of human rights as well: things that have been excluded from protection in the past because otherwise we are missing important points. The pure legal positivist approach is not sufficient an answer.
• With this definition also not sufficiently precise to allow to distinguish between ordinary rights and human rights: so we need to integrate the approaches. Also need to make a distinction whether something is a human right or if we want it to be a human right = in either way, we cannot stick conservatively to our legal text  critical exercise necessary.

Question 5

What are the 2 narratives on the historical development of HR?

Answer 5

• Better question: What do human rights do? Why do we want rights to become a human right? Maybe the qualification does not matter as much, but more the function of what they are doing. 2 narratives on the historical development of human rights:
  1. Protection against arbitrary use of power
  2. Protection of dignity

Question 6

What is the first narrative?

Answer 6

• Link to the idea of the rule of law, rechtsstaat. Clear historical connection with ideas of constitutionalism, constitutional rights, fundamental rights –> human rights are the fruit of modernity (even though some human rights in code of Hammurabi).
• But it is the pathway to modern times: start = Magna Carta. Also Charter of Kortenberg and Liège. Charters:
  • Confirmation that those that are governed are entitled to protection of some basic rights, some basic values against the will of power of those that govern.
  • Small steps, we would consider protection kind of weak because only protects certain categories of people: widows and not women; orphans and not children.
  • Also not use classic human rights terminology but you can see connection with human rights: eg. “my home is my castle” = protection of the house, inviolability of the house.

Question 7

What is the connection between fundamental rights and constitutionalism?

Answer 7

• Intimate connection between development of fundamental rights and development of constitutionalism because it limits the power of those empowers: part of the power struggle: also in Bill of Rights and “la déclaration des droits de l’homme et du citoyen”: Thomas Pain from American revolution, Rousseau, Lock = French & Scottish enlightenment.
• Result: national constitutional texts with a list of fundamentals rights where those in power can interfere but with restrictions, defined by law.
  
  • French absolute monarchy.
  • Almost all constitutions in the 19^Th century have a chapter on fundamental and constitutional rights: eg. Belgian constitution.

Question 8

What is the problem when it comes to protection of the individual against abuse of authority?

Answer 8

• Very obvious loophole:
• The aim of fundamental rights is to limit power of the state, power of commanders but it is only written in national constitutions  how are you going to protect against those in power that do not respect their national constitution?
  
  • Italy and Germany.
• You need something more: you need international norms and values and a place where you can go and complain in case domestic states do not respect the constitutions.

Question 9

What is the second narrative?

Answer 9

• Second set of clusters: human rights protect human dignity, after world war II.
• Nurenberg trial: a lot of crimes committed by the Nazi’s where not technically crimes = nollum crimen sine poena principle.
• Shows again that it is impossible to deal with human rights without establishing links with philosophy, ethics, critical thinking. There may be some human behavior that is not forbidden by existing national legislation from a positivist point of view but by everyone because of the fundamental impact that behaviour has on the human dignity should have refrained from doing it. Not just about lex, but about Justitia.
• Very complicated notion.

Question 10

What was the Wackenheim case?

Answer 10

• Case about dwarf tossing in France: mayor wanted to outlaw it, but they did not have a legal basis. They tried on the basis of danger to public order. So based on human dignity outlawed.
• Mr. Wackenheim claimed it infringed on his human rights to work and his human dignity.
• French Council of State sided with the mayor and the European Court dismissed his case because he did not exhaust the domestic remedies: so, dismissed for technical reasons: he made a reasoning he had not made before.

Question 11

What is the first aspect of human rights?

Answer 11

• First aspect of human rights: countermateriarian device = protect the rules adopted by majority of the minority: protecting individuals and small groups.

Risk linked to concept of human rights:

• While we think we are protecting the weak and vulnerable, we are imposing a majoritarian conception of human dignity

Question 12

What are some other aspects where human dignity is relevant?

Answer 12

• Sadomasochistic practices, prostitution, sex work as a form of abuse (but they want to express sexuality and earn a living = their human dignity?),…
  
  • Kathreen McKennan: against prostitution.
• View Paul Martens on human dignity: president of the Belgian Constitutional Court:
  
  • “As a law professor, I am opposed to it, it is too vague, too open” but “as a judge, I’m in favor of human dignity”

Question 13

How is human dignity viewed now as a tool?

Answer 13

• Human dignity = ultimum remedium, last resort if something is wrong but you cannot find a clear violation.
• Explosion, inflation of the notion of human dignity so we need to be critical of it: be aware that it can be easily used to hide a lack of strong legal arguments and that you may to some extent be misled.

Question 14

Do all the human rights carry the same weight?

Answer 14

• Categorization of human rights: UN Human Rights Conference in Vienna in 93’:
  
  • “No such thing as categorization of human rights, they are all interrelated, all interconnected and one whole” = you should not prefer the one over the other category. They are all equally important.
• But right to life = more important than the rest because if you are not alive, you can’t use your right to cultural development. So at least implicitly there is a kind of hierarchy.

Question 15

What is the human right inflation?

Answer 15

• Extension of the scope of human rights: human rights inflation:
  • Eg. article 8: covers all kinds of various situations: how you dress,…
• Good for applicants the enlargement but this comes at a cost:
  • The more human rights: the more human right clashes: my human right is clashing with your human right = horizontal debate.
  • Stigma has decreased of a human right violation. Politicians and other people not impressed by human rights violations.

Question 16

What is a possible solution for the human rights inflation?

Answer 16

• Need to be more selective of human rights: Philip Austin: immense human rights scholar: quality control needed.
• Also John Tasioulas: Oxford philosopher who warns against this extension because the more you extend, the more trivial the point. There is a risk that if everything is framed in terms of human rights clashes, if that is what we do, in the end a human rights violation becomes something trivial and maybe that is what is should not become.

Question 17

What is the distinction between the categories of human rights?

Answer 17

• If you link that historical development, which I believe to be fundamental, to the very basic concepts of human rights, you will see that in literature, in politics we often make a distinction between several categories of human rights. And those categories are also indicated as generations. And those generations, they refer both to a different concept, underpinning the rights in question and they refer to a chronological order.

1. Generation 1: Political and civil rights
2. Generation 2: Social, Economic and cultural rights
3. Generation 3: Solidarity Rights

Question 18

What are the first generation rights?

Answer 18

• Rights found in American/French Revolution: rights as a member of political community = defensive rights, defends against public authorities interferences.
  • Privacy; protection of house; freedom of press; freedom of writing; protection of property.
  • Related to the discussion of constitutionalism in American and French revolution, also the rights you need as a citizen to be able to participate in the process of the exercise of state sovereignty. And the first step there is of course is political participation: Democratic revolution.

Question 19

What was the develoment in the beginning of the 20th century after the first generation rights?

Answer 19

• Leftish movements: Marx, social democrats, progressive liberals where they call these rights = bourgeois rights because before you need your freedom of expression or freedom of press: you need to be able to afford these rights.
• Criticism: are people really helped with these rights  it can only be a meaningful freedom if there are other conditions to enjoy it = material condition. Also intellectual condition = you need to be educated.

Question 20

What are the second generation rights?

Answer 20

• Social democrats developing second generation rights: social, economic, cultural rights:
• The right to work, the right to work in decent circumstances, the right to health care, the right to schooling, the right to take part in the cultural development.

Question 21

What is the importance of the difference between generation 1 and 2 when it comes to the status of the state?

Answer 21

• First generation: the state had to refrain from acting = no interferences.
• Second generation: state has certain obligations to fulfill: directly or indirectly: Positive obligations:
  
  • Establish a health care system, schooling system.
  • Social democratic conception of the state that emerges: typically in Europe: plenty of things that we believe that the state should make accessible to its citizens.

Question 22

What are the third generation rights?

Answer 22

• As of the 1970s: third generation rights: called the solidarity rights:
  • Right to development, right to peace, protection of environment,…
• Here you can see the extension of human rights itself = human rights inflation: it was helpful to bring attention to these causes but we are moving away from a traditional legal conception of what rights are = moving into political realm, moral realm: people criticize but it can be a very powerful tool and instrument: UN Human Rights Summit in ’93.
  • Reason for criticism: the differences between generations and the rejection of human rights talk = conceptual differences.

Question 23

What are some nuances that are important when it comes to the generations?

Answer 23

• First generation rights do imply some obligations for states to do things: right to fair trial (article 6): means an independent judiciary. Also right to live (article 2,3): negative rights but also if incidents happen that there is an investigation = obligation.
  
  • So first generation are not just negative rights.
• Second generation rights: can also mean that the state is under a duty to refrain from doing things:
  
  • Health care system: still obligation to respect the non-discrimination principle.
• There is no Chinese wall between the generation but there is a difference between acting an in the balancing exercise between doing things and abstaining. And that has serious consequences. Those serious consequences being that from a legal point of view being that if you bring them to court or if you have to assess, whether there is compliance, well, here we have a fundamental difference.

Question 24

How does the compliance work with the different generations?

Answer 24

• Compliance with first generation rights:
  • Rather easy to check because often the state is under the obligation to refrain.
  • Also smaller budgetary impact.
• Compliance with second generation rights:
  • Harder because a judge has to assess whether the state has respected their obligation. Eg. climate change and the judge will have to be careful to not overstep and not act too politically because of separation of powers. Scrutiny will be more marginal.
  • Also the reason for a lot of criticism: judges that act too political or that we are using them as politicians.
    
    • Eg. in gender cases.
  • More important investments: establishing educational system, assuring right of housing,…
  • To what extent can the judge decide how much money has to spent? Because of separation of power, a judge has to be careful to not overstep their boundaries.

Question 25

What was the reason for the difficulty to reach 1 agreement on civil and political rights?

Answer 25

• Also the reason why it was difficult to reach a common agreement and 1 single treaty on civil political, social, economic and cultural rights:
  
  • US vs. the Eastern states. Also now a lot of differences:
    
    • US: let the market play, free associations, freedom of speech absolute. Rectification would be untolerated because of the freedom of expression of the news.
    • European: state is a facilitator of human rights. Also right to reply is a right and freedom of expression not as absolute.
  • It was difficult to establish binding treaties Universal Declaration has no strict legal force so that was easier.

Question 26

Who are the holders of fundamental human rights?

Answer 26

• Holders are human beings: the logical consequence from definition of human rights: individual citizens. Depends on the treaties:
• Individuals, individual citizens,… wording can differ.
• European Convention on Human rights: everyone. Covenant on Civil and political rights: all the individuals = matter of semantics:
  
  • Everyone without any further condition: even undocumented people who were not entitled to be in Belgium on the territory.

Question 27

Can you make a difference based on nationality or administrative status?

Answer 27

• You can make differences based on nationality or administrative status but at the common core of the human rights is that states have to protect everyone, even if they have failed to respect some legislation = that does not exclude the application of human right treaties (not in pari causa).
• Exception: that does not mean there is no distinction possible: political rights = rights you have as being a member of a political community: right to vote. Now within the EU less differences because if you have right to become a civil service and restrictions are very limited under European law

Question 28

Can also non-humans go to Strasbourg?

Answer 28

• Strasbourg case: plenty of cases where applicant is not a human being:
• Applicant is a company: freedom of expression regarding advertising. Also association: freedom of assembly. Right to a fair trial for commercial litigation. Freedom of property:
  
  • Bosphorus case: fundamental case to understand relationship between EU and the European Convention on Human Rights: was about a company that was leasing an airplane.
• Also for the third generation rights: more and more collective entities, group rights, the right to development, the self determination of people is that a matter of individuals. No that’s not a matter of individuals. That’s a matter of collectivities. That’s the part of who’s the holder of the rise.

Question 29

Who is under the duty to respect those fundamental rights?

Answer 29

If someone has a right, a claim = someone else will be under the duty to respect that claim and react to that.

• Self-evident answer: states = those who are in power = state public authorities: they are under the obligation to respect those fundamental rights.
  
  • This is in the broad understanding. Also includes judiciary, decentralized authorities, that is local authorities and so forth.

Question 30

What is the difference between horizontal and vertical application?

Answer 30

• Vertical understanding: Public authorities vs. individual applicants: private companies, private individuals.
  
  • But problem: more and more violations of rights by private companies: eg. Google or Facebook.
  • Growing awareness that similar behavior also happens with these private institutions and we cannot just apply the same rules in a horizontal way.
• Horizontal application: between two individuals:
  • Right to property: state is not entitled to take your property but also not your neighbor. Same thing: state agents not allowed to kill, but other people either.

Question 31

What is the problem with horizontal application of human rights?

Answer 31

• The other party has fundamental rights as well = clash.
  
  • Eg. Google/Facebook develops a policy that states that they do not want certain hate speech on their platform but that infringes on your freedom of expression = censorship.
  • A state party would never be able to do the same without interfering with freedom of expression but these media platforms are allowed to because it is their property.
• Tricky cases of anti-discrimination because it is private parties claiming that they are entitled to some human right:
  
  • Eg. discrimination on the basis of sexual orientation when Orthodox believers do not want to rent out to a gay couple: claim that this is a violation of their freedom of religion, freedom of expression and thought.
• Horizontal conflicts depend on contexts and the persons who are claiming the rights and it will be up to judges to decide: to strike a fair balance in between those competing rights: some are easy, some are tricky.

Question 32

What do judges need to do when facing 2 horizontal rights?

Answer 32

Judges need to do a balancing exercise:

• Eg. freedom of expression balanced against privacy protection.
• Protection of whistleblowers because sometimes private information does need to be kept private so there are some criteria under article 10.

Question 33

Wat is the Case Pla and Punchernau?

Answer 33

• Court was asked whether a will could make a difference between natural, between biological children and children that were adopted: boils down to private law discussion: some parties were excluded from the heritage because there was no biological link: what matters most? Biological link or legal formal link?
  
  • Horizontal application of the convention.
• A lot of fuss because some lawyers said that the court was not allowed to do this because a will is one of the most intimate things a person could do and the law should not impose a commonly shared social concept of families because that is what society wants to do.
  
  • Intriguing political and societal debate.
• Recent field within the area of human rights that starts from a sociological viewpoint.

Question 34

What are the international and transnational corporations and their effect on human rights?

Answer 34

• Emergence of powerful players that are strictly speaking private actors: international and multinational corporations: Google, Facebook, Amazon, Unilever,…
  
  • If we want to improve human rights situation on a global scale: we need to have these players on our side. There are already some initiatives:
• International Labor Standards, international environmental law but in some countries there is not a powerful authority to enforce these rules so they remain without any further meaning.
• Eg. fight against child labor: hard to handle with the authorities of Bangladesh so better try through the president of Zara, H&M: on a voluntary basis, they will accept some norms but we should not be naïve = they are not going to force themselves to comply with the strictest norms possible.
• OECD developed some rules on business and human rights, also within UN: framework on business and human rights: guiding principles, there is always a kind of fear to make a treaty binding so kind of self-regulating.

Question 35

Is there more awareness?

Answer 35

• Yes:

Things are moving, more awareness in bilateral investment treaties: importance of human right clauses:

• Awareness that human rights are important so companies do feel some more obligations but it remains to be seen whether or not it will bring any spectacular results.

Question 36

What is the reluctance when it comes to private players?

Answer 36

• Also reluctance to place the burden on private players to protect human rights = you cannot shift it completely because they are not state parties:
• Combatting hate speech: reluctant to shift/divide the burden fully between state parties and the technology players: because that would make them gatekeepers of free marketplace of ideas and they might have their own ideas and censor ideas that they do not like: eg. other economic systems so that they remain capitalists.
  • Question: to what extent should we allow private entities to be gatekeepers: it has advantages but also risks. Making a comprehensive framework would be a bit overambitious but we could use some strict binding rules to work with or leading guiding principles that are more flexible and that can be more adopted to the to the situation at stake.

Question 37

Are human rights absolute or relative?

Answer 37

Some human rights are relative and can be waived, but some rights are considered absolute. There are situations where there is an overriding interest so limitations can be placed.

• In many cases: individuals can waive their rights: point is that the conditions under which you waive your right is essential. You cannot waive your right in an unrestricted way, in an imprecise general way but accepting cookies = waive your right to privacy or data protection: limited waive of your rights, precise circumstances.
• Freedom of expression: can be restricted because as an academic you need to be loyal to the values of University or to your corporation: you cannot just go around and say that your product is terrible.
• Again: balancing act of the judge. Will be harder if there are multiple human rights and fundamental right has extra weight.

Question 38

Does the citizen have obligations as well?

Answer 38

• Some treaties refer to the obligations, duties and responsibilities but not very common. Lots of discussion on the idea of creating a kind of universal obligation or responsibility of mankind = balancing exercise about the position of the citizen: Citizen has right and obligations.
• You have to be careful but in the end: human rights protect the individual against public authorities: public authority has the monopoly of violence and monopoly of taxes:
• Imbalance of power and human rights is to balance that imbalance by affording rights to citizens.
• Obligation: imposing a majoritarianism on individuals human rights as anti-majoritarian tools.
  
  • Eg. Hungarian constitution: children have obligations towards parents: may be morally self-evident but might not always be the case. A state might refer to this obligation when reforming the social security that children first need to take care of their parents.
• If we impose obligation to citizens: are we taking back some of these rights? Risk may be a little overstated because we already have these duties: duty to obey the law, pay taxes.

Question 39

What is the need for international organizations?

Answer 39

• Need for 2 things: international standards and international venues: victims should be able to go somewhere to complain about the behavior of states lacking to protect them: international machinery. You also need standards and these are the rules, the substantive rules what are then those human rights.
• UN Declaration: document containing standards and where the UN machinery is typically the charter and the charter based organs and mechanisms are typically places where you can go and complain. That is the basic framework of the UN.

Question 40

What is the tension between national sovereignty and international protection of HR?

Answer 40

• Article 2: stresses state sovereignty:
• States are not authorized to intervene in matters which are essentially within the domestic jurisdiction of any other state = noninterference with domestic affairs.
• So even though they wanted to develop a truly international legal order, the drafters were still looking through the lens of national sovereignty: this has become problematic over the years:
  
  • Crisis but where a state claimed that it is a matter of domestic jurisdiction = no foreign interference with domestic affairs.
• Trouble: we need to find a way out and find a solution where the international community is not able to do anything because of this principle of noninterference when they see that population is suffering.