Introduction Flashcards
What is the structure of the class?
- 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.
- 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.
- 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.
What is a human right?
- 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.
What is the strict and broad sense of a human right?
- 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.
What is a first definition of human rights?
- 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.
What are the 2 narratives on the historical development of HR?
- 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:
- Protection against arbitrary use of power
- Protection of dignity
What is the first narrative?
- 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.
What is the connection between fundamental rights and constitutionalism?
- 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 19Th century have a chapter on fundamental and constitutional rights: eg. Belgian constitution.
What is the problem when it comes to protection of the individual against abuse of authority?
- 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.
What is the second narrative?
- 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.
What was the Wackenheim case?
- 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.
What is the first aspect of human rights?
- 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
What are some other aspects where human dignity is relevant?
- 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”
How is human dignity viewed now as a tool?
- 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.
Do all the human rights carry the same weight?
- 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.
What is the human right inflation?
- 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.
What is a possible solution for the human rights inflation?
- 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.