Human rights

Early foundations

• Magna Carta Libertatum (England), 1215

• Union of Utrecht (Netherlands), 1579

• these examples limited to specific group or to specific rights

• Declaration de Droits de l'Homme et du Citoyen (France), 1789

• US American Bill of rights, 1791

• both contain extensive lists of rights granted to all citizens

→ national laws!

UN HR framework

• Charter 1945: elevates human rights as one of the goals of UN, but includes no list of human rights

• UN Office of High Commissioner for Human Rights since 1993

UDHR (1948)

• First general human rights document, but not treaty or charter, only a declaration

• The ICCPR and ICESCR developed from the UDHR

ICCPR (1966)

International Covenant on Civil and Political Rights 

ICESCR (1966)

International bill of human rights

UDHR, ICCPR, & ICESCR collectively

Examples of issue-specific HR conventions developed by UN

• Convention against genocide

• Convention against torture

• Women’s rights convention

• Child convention

Council of Europe

• founded in 1949 by 10 states

• international organization headquartered in Strasbourg, France

• currently 47 member states, representing 800 million people

European Convention on Human Rights (ECHR)

• an international treaty

• made in 1950, entered into force in 1953

• first Council of Europe convention for protection of human rights

(ECHR) protects the right to

• life, freedom and security

• respect for private and family life

• freedom of expression freedom of thought, conscience and religion

• vote in and stand for election

• a fair trial in civil and criminal matters

• property and peaceful enjoyment of possessions

(ECHR) prohibits

• torture or inhuman or degrading treatment or punishment

• slavery and forced labor

• arbitrary and unlawful detention

• discrimination in the enjoyment of the rights and freedoms secured by the Convention

• deportation of a state’s own nationals or denying them entry

• the death penalty

• the collective deportation of foreigners

Other Council of Europe documents based on the rights in the ECHR

• European Social Charter

• European Convention for the Prevention of Torture

• Framework Convention for the Protection of National Minorities

• Council of Europe Convention on Action against Trafficking in Human Beings

First generation: classic human rights (civil and political rights)

• Freedom of religion

• Right to privacy

• Freedom of expression

• Right to fair trial

• Prohibition against torture

• Right to political participation

Second generation: social rights/socio-economic rights (help to maintain a certain standard of life)

• Adequate food

• Shelter

• Health care

• Family support

• Right to self-determination

Third generation: solidarity rights

• Deal with worldwide problems • e.g. war, pollution, degradation, under-development of countries

• Problems requiring joint action of all states, and other actors

• Counterpoint to the individualism of 1st and 2nd generation rights

• Non-justiciable (cannot be enforced in courts): Right to peace, right to healthy environment, right to development

Four human rights obligations of states

• obligation to respect = state is prohibited from acting contrary to human rights

• obligation to protect = state must prohibit private persons or institutions from infringing human rights and provide remedies for breaches

• obligation to ensure = state needs to take positive action to safeguard rights

• obligation to promote = Develop policies towards effective realisation of rights

Rights against the government 

Vertical

Rights vis-a-vis private parties 

Horizontal

States have obligation to ensure that human rights between citizens are respected

Indirect horizontal effect

Applications of HR

• private person can complain at international court of state failure

• at national level, international treaties can be invoked which contain fundamental rights between private persons

Limits on HR

• “inalienable”: rights cannot be lost - but they are not limitless → derogations during emergency, states’ reservations from treaty provisions

• however, fundamental character of rights means relinquishing them is strictly regulated

In International Law (e.g., Article 19 (3), ICCPR)

State limitations on a fundamental right may be permitted only if it falls within the very narrow conditions of a three-part test:

1. The limitation must be provided for in a written law

2. There must be an important and legitimate purpose for the limitation

3. The limitation imposed must not be more than what is necessary [and must be limited in time.] (proportionality principle)

European law: four-step test for proportionality from ECJ case law (Craig & de Burca)

Proportionality requirement for state measures limiting human right:

1. Lawmaker must show a legitimate aim of the measure,

2. measure must be suitable to achieve the aim (proven through evidence)

3. measure must be necessary to achieve the aim, that there cannot be any less burdensome way of doing it (ultima ratio)

4. measure must be reasonable, considering any competing interests of interested parties or groups