Human rights law notes - Lesnotities K. Lemmens & P. Lemmens PDF

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Lesnotities K. Lemmens & P. Lemmens...

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International and European Human Rights Law (Prof. P. Lemmens & K. Lemmens) Abbreviations:  CJEU: Court of Justice of the European Union (Luxemburg)  ECJ: European Court of Justice (highest court of the CJEU) (Luxemburg)  ECHR: European Convention on Human Rights  ECtHR: European Court of Human Rights (Strasburg)  H.R.Cttee: Human Rights Committee (= the body of independent experts that monitors implementation of the International Covenant on Civil and Political Rights by its State parties)  ICJ: International Court of Justice (Den Haag) Course material:  Booklet ‘Texts’ = to use on exam  Book ‘Cases and Materials’ = NOT allowed on exam = outline on discussed topic in class (chapters that are not addressed in class, are not to be known for exam) → ‘Cases and Materials’: Know the principles and link with content of courses. Exam: Two questions  Open question (1 page to answer)  Case (facts) → How would you defend this case as a state party? OR → If you’re a court, how would you deal with this case.  Make references to legal reason.

I.

INTRODUCTION

1. Concept of Human Rights 1.1. Fundamental rights A.

Common characteristics   

Human rights are a powerful narrative → Everyone is in favour of human rights, even those who violate them. Broad concept → expands to all fields in human life.  Also criticism (e.g. Fernand Ceuleneer) Two major characteristics of human rights: o Protection of individuals against abuse of authority → Protection of people against power used by public authority. = Related to the idea of constitutionalism. o Protection of human dignity → the possibility for the people to live in dignity = more controversial issue:  What criteria’s to define human dignity?  E.g. H.R.Cttee., 15 July 2002, Wackenheim v. France, no. 854/1999.

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→ 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  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. This case can be projected on others, e.g. prostitution. Against human dignity = against our concept of human dignity (majority opinion!) It’s a difficult discussion. 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. 

B.

Are all human rights “fundamental” rights?  

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

C.

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.

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

1. Individual rights and freedoms: a) Freedoms and procedural rights (“1st generation”) → Civil and political rights. Pagina | 2

E.g. Fair trial, right to live (= no torture)  Duty for public authorities to refrain from intervention: “Rights of non-interference”. Original purpose = protection of some rights (liberal rights) and some categories of people → 19th C.: Expansion to “all people”. b) Participation rights (“2nd generation”) → Economic, social and cultural rights. → 20th C.: Opinion influenced by socialism: Attention to circumstances in which rights are exercised lead to the development of 2nd generation rights. E.g. School system, labour law legislation  Positive obligations for states (altered relation to public authorities). BUT economic dimension → To what extend can material arguments (budget) be used in this debate? Solution = Progressive realisation (because of budgetary impact, political choices) 2. Collective rights (“3rd generation”) → Solidarity rights. → ‘80’s: Origination of rights exercised by groups, not by individuals. E.g. Peace, 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? 

Nuance: o Idea that human rights are interrelated and are a whole. o ECJ reads positive obligations in all rights (also in 1st generation rights). E.g. Right to privacy (1st generation) is used in the sense of a 2nd generation right. Nonetheless there are conceptional differences!

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2nd generation rights come with a price → taxes! E.g. to lower the cost of education.  Conflict, because people want the government to act, but they don’t want to pay taxes.

 D.

Holders of fundament rights 

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 E.

Sometimes there is a conflict between ‘non-interference’ and ‘positive obligations’, also in European debates.

Individuals → Enjoinment of human rights is given to everyone: o No need to be ‘regular’ in a state, just being under its jurisdiction is enough. o Everyone is a holder of fundamental rights, but political rights are often only given to citizens (here a distinction can be made without it being discrimination). Private entities → Also corporations can have human rights E.g. Freedom of expression, right to property  Human rights is not only about individuals… Collectivities Bearers of duty to respect fundamental rights Pagina | 3

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State → Duties are for public authorities, in each branch: o Legislation o Government o Judiciary o Local authorities. Only state parties can be brought to court for not respecting the ECHR.

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Private individuals and private entities 1. “Horizontal application” of human rights provisions → 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 individuals rights and human dignity. The violation matters, not the qualification of the perpetrator. E.g. Freedom of expression (tabloid) v. right to privacy (movie star) Photos taken by paparazzi → Which right prevails?  Violation right to privacy → State did not prevent the publication.  Violation right of expression → 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. E.g. ECtHR, 13 July 2004, Pla and Puncernau v. Andorra → 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. 2. Corporate human rights responsibility New scholarship and rules are developed on corporate social responsibility and on business and human rights. → Globalisation and connected evolutions have led to international companies (e.g. Apple) that have more economic power than states. They can lobby and have influence to change things.  Idea (but still a lot of conceptual work has to be done): Should we involve these corporations in our human rights discourse? E.g. Labour standards, environmental standards (involving Shell would be effective in handling environmental issues in Africa).

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See: John Ruggie, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (2011). There is criticism on that, because you never know whether the companies will make standards that they can easily respect or that they can do more. F.

Are fundamental rights absolute or relative? 

Waiver1 of rights (complicated issue) o Traditional European point of view = Human rights are of public order, so they constitute the basic values of the legal order (cf. art. 6 Belgian Civil Code), so no waiver is possible. o BUT in practice this point of view is unrealistic, because human rights are expounding. E.g. Reality Television (Temptation Island, Big Brother): If privacy is a fundamental right and really of public order, than no one could sign an agreement to participate in these television shows, because it would be a violation of privacy. E.g. Waiving the right to go to a judicial court → arbitration agreements are acceptable.  We accept that human rights can be waived if the waiver concerns a precise aspect of it, if it’s unambiguous and if it’s clear.

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Conflicts between fundamental rights and other interests, and between fundamental rights themselves. One human rights conflicting with another human right → ECtHR: balancing exercise: striking a fair balance between the competing rights.  ECtHR tries to create standards that should be taken into account when doing the balancing exercise (e.g. behaviour of the applicant, severity of the sanction…).

1.2. Fundamental responsibilities A.

Individuals  

Little referencing to responsibilities (peoples having obligations) in treaties. On the one hand: Obvious that rights and duties go hand in hand. → Not a conservative idea. On the other hand: The basic idea underpinning human right is about protecting human beings against the power of state authority. Does it than make sense to impose the burden on the citizens? = Giving rights + taken them back “because you are under the obligation”.  State already has the monopoly on state violence and on taxes. What else do they need more? Obligations for people (in e.g. African system) are in a way reformulations of trivialities (e.g. obligation to pay taxes), so there is not much added value.  Either the problem is that through the idea of responsibilities majoratariorism is coming through the backdoor (e.g. There is freedom of expression, but individuals have the duty to respect their culture). → Uneven relation between right holders and public authorities. In this context it may fire back to give duties to people. Abuses possible.

1 Verwerping.

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E.g. New Hungarian Constitution: “Children have the obligation to take care of their parents.” → Idea is morally fine, but is it a good idea to put it down in a constitution? A government that is low on cash, could consider to lower pensions. When people protest, the government can send people first to their children.  

G.

Art. 29 Universal Declaration of Human Rights InterAction Council proposal for a Universal Declaration of Human Responsibilities (1997). 1. Within the United Nations 2. Within the Council of Europe o ECHR, art. 10 (and other articles). o Parliamentary Assembly of the Council of Europe, resolution 1845 (2011) of 25 November 2011 on “Fundamental rights and responsibilities”. States

See the mandate of the independent expert of the Human Rights Council on human rights and international solidarity (currently Mrs Virginia Dandan) → Towards a declaration on the right of peoples and individuals to international solidarity?

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II.

INTERNATIONAL LAW OF HUMAN RIGHTS: GENERALITIES

2. Human rights in international relations and in international law 2.1. International standards and international control mechanisms International human rights law developed after WW II. Reason:  Strong indignation in the world about what had happened  Strong feeling that human rights can’t be protected on a domestic level → Willingness to protect human dignity through international standards and if possible to be placed under international control mechanisms. Adoption of the Universal Declaration of Human Rights, 10 December 1948 (General Assemblee) → Not a binding treaty, just a proclamation of what are the mean human rights

o

 Not ‘international’ in the title, but ‘universal’: idea that it would be followed by binding texts, but it didn’t work out that easily because of the outbreak of the Cold War: Western countries → protection of civil rights

o Communist countries → protection of economic and social rights At the end → two treaties, adopted in 1966

2.2. National sovereignty and international protection of human rights A.

In general

Principle →

States have sovereignty and other states cannot interfere with the domestic matters of a state.

= Principle of non-interference in domestic matters (art. 2, §7, UN Charter). Question how wide the domestic jurisdiction of states goes. When is it not essentially domestic anymore? Often discussion on international level (cf. China wants a broad domestic jurisdiction and no interference with human rights situation in their country = direction of US) →

Generally is it accepted that human rights are a responsibility of the whole mankind, for each individual living in each state.

Also in Europe times are changing and starts to grow resistance. → Changing political views in a number of countries have an impact on international issues.  These developments are a matter of concern. Human rights, the rule of law and democracy are important. Secretary general of the Council of Europe (47 countries) discussed in his annual reports of 2017 ‘populism’: ‘Populism: how strong are Europe’s checks and balances’. Many European states seem to be less protective of their pluralism and more accepting populism. Populism = Political forces who appeal to wide spread public grievances while seeking to exclude other voices (proclaimed will of the people). There starts to live an idea within states that international organisations, courts and treaties rob the people of their sovereignty, including the Declaration of Human Rights. Pagina | 7

Populism at a national level → disregarding the rights of minorities. E.g. Nationalist movement based on the idea of sovereignty, cf. Switzerland: Referendum on the relationship between domestic Swiss law (constitution) and international law (European Convention on Human Rights) → idea that domestic law should prevail. H.

Actions in response to serious violations of human rights

Two examples of where human rights can be the basis of interference in domestic law (political, even military action). 1. Economic measures  In every agreement (trade and cooperation agreements) between the EU and third countries was a “human rights clause”. → If in one of the countries human rights became a concern, than the UN was entitled to start discussions with that country about that situation.  No solution found → UN could suspend cooperation with that country. (Now they use other mains than these clauses to protect human rights.) 

Economic sanctions (see art. 41 UN Charter) are also possible when a violation of human rights (e.g. Prohibiting import from certain countries). They can be imposed by international organisations (UN, more often EU), sometimes even by individual states (unilateral sanctions). They must be authorised by the UN for them to be legal. Possibility that the effects of economic sanctions are not so good for human rights. Sometimes they only effect the local population instead of the government (no import from other countries) so the local population is effected in their human rights. Recent discussion in UN whether this is a still a good tool for the protection of human rights. Solution = Regular checking:  Are the economic sanctions effective?  Are the consequences for the people not more serious than the benefits of the sanction? (idea of proportionality)

2. Use of force (military or humanitarian interventions)  Provisions of UN Charter: o Art. 2, § 4 (prohibition of use of force) o Art. 42 (action taken by Security Council)  Humanitarian interventions happened a few times in the past. E.g. NATO intervention in Yugoslavia (1999). Kosovo in 1999, when after the end of the Yugoslav war there were still tensions between two communities (Albanian and Serbians). NATO decided to bomb Serbia and Kosovo later became an independent state. = Violation of international law, but was okay for moral reasons. E.g. Libya in 2011, but afterwards it stopped (sensitive issue).  There is a feeling that there are tools lacking for determing when a military intervention is possible. The search for criteria:  International Commission on Intervention and State Sovereignty, The responsibility to protect (2001) → When can and should military intervention take place?  Humanitarian intervention in a wider context → Responsibility to protect (R2P). Every state has the responsibility to protect the human rights of its citizens. When a state violates the human rights of its own citizens, than another state can intervene. Pagina | 8

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Gradual development of actions:  Creating another climate in a country  Discussions  Use of violence  Rebuilding (with support of local population).

2.3. Universality of human rights International human rights are conceived as universal rights (every place in the world & for everyone). Dispute (started in ’90 in Southeast Asia) → International human rights standards reflect only Western values. Asian society functions on the basis of other principles. Cf.: 



Discussions at the World Conference on Human Rights (Vienna, 1993). Idea of World Conference was to underline the universality of human rights and to set steps forward in bringing states to respect human rights. But no progress was made… Attack on human rights launched by Russian government → Human rights are sometimes incompatible with national values (moral, traditional values relating to e.g. family relations, sexual habits).  Discussion on “traditional values of humankind” (Human Rights Council, Advisory Committee) Result: Disagreement on the position of traditional values v. human rights. E.g. Case ECtHR, 20 June 2017, Bajev and Others v. Russia (not in casebook) → Federal laws in Russia that prohibits propaganda, public activities in favour of homosexuality among minors. Two homosexuals were sanctioned for their actions and th...