Week 6A - Fundamental rights

what are fundamental rights?

• inalienable, universal, enduring (perpetual)

• claims belonging to human beings

• structures the relationship between the individual and the state

• protect interests that are central to human dignity and liberty

what value do fundamental rights add to the constitution?

• build the programmatic value of the constitution

what are the 2 dominant theories of origin of fundamental rights?

1. Natural law

2. Legal positivism

natural law origin of fundamental rights

• fundamental rights are a recognition of what is already there in nature

• declaratory

• certain moral principles can be discovered through human reason, and are inherent in the nature

Which legal scholars supported the idea of natural law as origin of fundamental rights?

1. Aquinas

2. Hugo de Groot

3. Locke

How has Hugo de Groot and Locke used the idea of natural law

• utilised the perspective on natural law to challenge the divine right of monarchs

• social contract was a way to protect the already existing fundamental rights

legal positivism of fundamental rights

• human rights are products of man made law

• constitutive in nature

Which legal scholars have supported the idea of legal positivism as origin of fundamental rights?

1. Jeremy Bentham

2. Kelsen

how did bentham describe fundamental rights

• “nonsense upon stilts”

• fundamental rights are northing without corresponding law enacted by a sovereign power

Legal positivism describe

• the validity of a law depends on its formal enactment

• law is law, no matter if it is unjust

• as long as it was passed by the competent authority

• this emphasized legal certainty

what is the reasoning behind legal positivism in fundamental rights?

• without the attachment of fundamental rights to enacted law

• fundamental rights can become vague and politically dangerous

• rights need legal definitions, otherwise they are a moral claim rather than a legal right

What is Kelsen’s theory in legal positivism and fundamental rights?

• separates legal validity from moral judgement

• law is understood as a hierarchial normative order

• in which the validity of lower norms depends on higher norms

• legal rule is valid not because of moral value but because it has been produced in a way the legal order requires

classification of fundamental rights

1. Absolute / relative

2. Vertical and Horizontal effect

3. Positive and negative obligations

why is the classification of fundamental rights important?

the legal structure of a fundamental right depends on how it is classified

absolute fundamental rights

• may not be limited

• cannot be limited even for strong public interests

• example = prohibition of torture

relative fundamental rights

• most rights are relative

• limitations and restrictions are possible if certain conditions are met

• example = freedom of speech

vertical effect of fundamental rights

• Traditionally, fundamental rights were designed to have vertical effect

• individual vs state

horizontal effect of fundamental rights

• relationship between private actors

• there are some constitutional systems that allow for direct horizontal effect of fundamental rights

• whereas other systems have indirect horizontal effect, where courts interpret private law in light of constitutional rights

types of state obligations

1. Positive obligations

2. Negative obligations

positive obligations

the state must actively do something to protect fundamental rights

example = providing access to courts

negative obligations

the state must refrain from action / interference

example = privacy

Generations of fundamental rights

1. 1st generation = civil and political

2. 2nd generation = social, economic and cultural

3. 3rd generation = group or solidarity rights (environmental etc.)

how are first generation rights presented in terms of state obligations

• mostly negative obligations, but can also be positive

how are second generation rights presented in terms of state obligations

• positive obligations

how are third generation rights presented in terms of state obligations

• can be both positive and negative

what is the 4th and new / upcoming generation of rights

• technical and scientific development

what are the dominant sources of fundamental rights?

• international treaties

• constitutions

• statutory law (regular, constitutional status, case law)

constitutional status

• when statutory laws are given constitutional status

• hence it becomes part of the constitutional framework

• it transforms this into constitutional framework

how are fundamental rights protected through judicial power?

• ex-post review = courts review the constitutionality of a law after violation has occured

types of constitutional review systems (primary ex-post)

1. Concentrated

2. Diffused

3. No constitutional review

concentrated review

• power to declare a domestic law unconstitutional is given exclusively to one specialized court

regular or diffuse review

• any judge in any court has the authority to declare a law unconstitutional

Germany constitutional review system (fundamental rights)

Concentrated review = if a constitutional fundamental right is violated

Regular / diffuse review = if international fundamental right is violated

USA constitutional review system (fundamental rights)

• diffuse review

• any judge in any court has the authority to declare a law unconstitutional and refuse to apply it if it violates fundamental rights

Netherlands constitutional review system

• no constitutional review

• dutch judges are strictly forbidden from checking whether an act of parliament violates the national constitution

• but international human rights treaties are directly applicable because under art. 94 constitution they hold a higher rank than domestic statutes

• hence dutch judge can refuse to apply dutch law if it violates an international human right

Soft review

• example = UK declaration of incompatibility with human rights act

• when an act of parliament is incompatible with the human rights act

• when the signal is picked up by parliament they will change the law

preliminary question in constitutionality

• example = France

• can be ex-post (after) and ex-ante (prior) legislation enters into force

How are fundamental rights protected in the ECtHR?

• supranational court

• issues binding judgements

what type of judgements does the ECtHR issue

• violation

• just satisfaction =

• measures

what is the ECtHR process of review in determining a violation of fundamental rights?

• infringement?

• prescribed by law?

• legitimate aim?

• necessary in a democratic society?

• these are cumulative conditions

What is the function of the committee of Ministers of the Council of Europe?

How are fundamental rights protected through legislative branch?

• mandatory advice on bills from advisory body (not binding)

  • example = council of state (NL)

• preliminary ruling on bills from constitutional council

  • example = constitutional court (France)

• bicameral scrutiny

  • example = netherlands, france, italy

what are other ways to protect fundamental rights non-judicial and non-legisaltive?

• Dutch institute for human rights

how can fundamental rights be restricted?

• absolute rights = cannot be restricted

• relative rights = have a criteria that needs to be followed

what type of frameworks are the to restrict relative rights?

1. Formal limitation framework (example = NL)

2. Substantive limitation framework (example = ECHR)

Formal limitation framework fundamental rights

• whether the legislator has the right to restrict the right

• no proportionality or subsidiarity test

• in the dutch system fundamental rights can be restricted if it is allowed via an act of parliament

Substantive limitation framework fundamental rights

• focuses on testing the substance, fairness and necessity if the restriction

• must pass test:

1. Perscribed by law (basis in national law, accessible, foreseeable)

2. legitimate aim

3. Necessary in a democratic society (Proportionality and Subsidiarity test)

ECHR judicial doctrines

1. Margin of appreciation doctorine

2. Principle of effectiveness

3. Prism effect

Margin of appreciation doctorine

• ECHR recognizes that European countries have different cultural, moral, and political standards

• The court grants Member States a certain degree of deference to decide how to restrict rights in their own countries,

• especially on sensitive topics where there is no European consensus

Principle of effectiveness

• the court insists that human rights must be interpreted in a way that makes them practical and effective in reality

• not just theoretical promises on paper

• “living instrument” = making sure people can use fundamental rights in present day conditions

Prism effect (+example)

• the court does not always look at rights separately

• sometimes one right has more rights within the same provision

• example = right to protest

  • also a right that relates to freedom of expression

associative rights

• right to freedom of assembly

• right to freedom of association

how does netherlands and germany protect associative rights

• explicitly protected by the contitutions

• art. 8 and art. 9

how does the US protect associative rights

• assembly = explicitly in the contitution

• association = implicit in the first amendment, the freedom of association is implied because without this you would not be able to exercise freedom of speech

how does france protect associative rights

• statutory association law was given constitutional status

• alongside preamble of the constitution

how does ECHR protect associative rights

• explicitly protected by article 11 ECHR

philosophies and grounds for banning parties

1. Militant democracy model

2. Institutional democracy model

3. Liberal democracy model

Militant democracy model

• example = Germany, ECtHR

• believes that no freedom should be given to the enemies of freedom

• If a political party uses democratic freedoms (like elections and free speech) with the ultimate goal of destroying democracy from within, the state has a right and a duty to ban them before they succeed

• high threshold of threat = the state is able to ban the party before it creates danger / violence

Institutional democracy model

• example = Netherlands, France

• This model focuses heavily on protecting the functioning of state institutions, societal peace, and the rule of law, protecting public order

• a party can be banned if its goals or activities create a severe violation of public order

• semi high threshold of threat = a severe violation of public order is enough to get the party banned

Liberal democracy model

• example = USA

• It believes that the best remedy for hateful or anti-democratic political speech is more speech, not government censorship or bans

• The state should almost never have the power to decide which political ideologies are legal

• very high threshold of threat = The Brandenburg Rule = the government can only intervene if the party's advocacy is directed to inciting imminent lawless action AND is likely to produce such action

spectrum of models to ban political parties ranked (from strictest to least strict)

1. Liberal democracy model (most strict)

2. Militant Democracy model

3. Institutional democracy model (least strict)

what are the different models for competent authorities for banning political parites

1. Concentrated (supremacy) model

2. Hybrid model

3. Judicial model

4. “No Ban” model

Concentrated (supremacy model)

• Germany

• Only one specific court has the power to ban a party = Federal Constitutional Court

• at the request of political organs Bundestag, Bundesrat

Hybrid model

• France

• This model blends the powers of the Executive branch (the President/Ministers) and the Judicial branch (the courts)

• at the request of Public Prosecution Service (PPS)

Judicial model

• Netherlands

• any regular civil court has the power to ban and dissolve a political party if its activities conflict with public order

• at the request of Public Prosecution Service (PPS)

No Ban model

• USA

• There is no legal mechanism in the United States to simply ban a political party

• Instead, the US uses individual criminal prosecution. If members of a political group commit crimes (like sedition, tax fraud, or violence), the government prosecutes those specific individuals

• RICO (Racketeer Influenced and Corrupt Organizations Act)