 Origins

of human rights
 Origins of human rights
 the English revolution, the Enlightenment and the need of curbing the arbitrariness of
sovereign power
 the English Bill of Rights (1689)
 human rights as legitimisation of the modern state
 human rights as indispensable part of the rule of law and constitutionalisation
 Declaration of the Rights of Man and of the Citizen (1789), American Bill of Rights (1791)
 universality and inalienability of human rights against the sovereign power
 the Second World War and internationalisation of human rights protection:
- UN Charter (1945)
- Universal Declaration of Human Rights (1948)
 Sovereignty: Jean Bodin

Jean Bodin, Six livres de la République:

La souverainté est la puissance absolue et perpetuelle d’une République. [Sovereingty is the
absolute and eternal power of the Republic].
Sovereign is the one who does not recognise anyone mighter than oneself except for God.
The prince is not subjected to the power of laws.

 Sovereignty: Thomas Hobbes

 Sovereignty: John Locke
 Sovereignty: Jean-Jacques Rousseau
 The English Bill of Rights
 the pretended power of suspending the laws and dispensing with laws by regal authority
without consent of Parliament is illegal;
 the commission for ecclesiastical causes is illegal;
 levying taxes without grant of Parliament is illegal;
 it is the right of the subjects to petition the king, and prosecutions for such petitioning are
illegal;
 keeping a standing army in time of peace, unless it be with consent of Parliament, is against
law;
 Protestants may have arms for their defence suitable to their conditions and as allowed by law;
 election of members of Parliament ought to be free;
 the freedom of speech and debates or proceedings in Parliament ought not to be impeached or
questioned in any court or place out of Parliament;
 excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted;
 jurors in trials for high treason ought to be freeholders;
 promises of fines and forfeitures before conviction are illegal and void;
 for redress of all grievances, and for the amending, strengthening and preserving of the laws,
Parliaments ought to be held frequently.
 The American Bill of Rights (1789-1791)
 freedom of religion, freedom of speech, freedom of the press, freedom of assembly and the
right to petition the government
 the right to keep and bear arms
 restrictions of quartering of soldiers in private homes
 prohibition of unreasonable searches and seizures; requirements for search warrants based on
probable cause
 fair trial, prohibition of self-incrimination and double jeopardy (ne bis in idem)
 the right to a speedy public trial by jury, to notification of criminal accusations, to confront the
accuser, to obtain witnesses and to retain counsel
 the right to a jury trial in civil lawsuits
 prohibition of excessive fines and excessive bail, as well as cruel and unusual punishment
 rights not enumerated in the Constitution are retained by the people
 the federal government possesses only those powers delegated, or enumerated, to it through
the Constitution, and that all other powers are reserved to the States.
 The Declaration of the Rights of Man and of the Citizen (1789)
 Article I – Human Beings are born and remain free and equal in rights. Social distinctions can
be founded only on the common good.
 Article II – The goal of any political association is the conservation of the natural and
imprescriptible rights of man. These rights are liberty, property, safety and resistance against
oppression.
 Article III – The principle of any sovereignty resides essentially in the Nation. No body, no
individual may exercise any authority which does not proceed directly from the nation.
 Article IV – Liberty consists of doing anything which does not harm others: thus, the exercise
of the natural rights of each man has only those borders which assure other members of the
society the fruition of these same rights. These borders can be determined only by the law.
 Article V – The law has the right to forbid only actions harmful to society. Anything which is
not forbidden by the law cannot be impeded, and no one can be constrained to do what it does
not order.
 The Declaration of the Rights of Man and of the Citizen (1789)
 Article VI – The law is the expression of the general will. All the citizens have the right of
contributing personally or through their representatives to its formation. It must be the same
for all, either that it protects, or that it punishes. All the citizens, being equal in its eyes, are
equally admissible to all public dignities, places, and employments, according to their capacity
and without distinction other than that of their virtues and of their talents.
 Article VII – No man can be accused, arrested nor detained but in the cases determined by the
law, and according to the forms which it has prescribed. Those who solicit, dispatch, carry out
or cause to be carried out arbitrary orders, must be punished; but any citizen called or seized
under the terms of the law must obey at once; he renders himself culpable by resistance.
 Article VIII – The law should establish only penalties that are strictly and evidently necessary,
and no one can be punished but under a law established and promulgated before the offense
and legally applied.
 Article IX – Any man being presumed innocent until he is declared culpable if it is judged
indispensable to arrest him, any rigor which would not be necessary for the securing of his
person must be severely reprimanded by the law.
 Article X – No one may be disquieted for his opinions, even religious ones, provided that their
manifestation does not trouble the public order established by the law.
 Article XI – The free communication of thoughts and of opinions is one of the most precious
rights of man: any citizen thus may speak, write, print freely, except to respond to the abuse of
this liberty, in the cases determined by the law.
 The Declaration of the Rights of Man and of the Citizen (1789)
 Article XII – The guarantee of the rights of man and of the citizen necessitates a public force:
this force is thus instituted for the advantage of all and not for the particular utility of those in
whom it is trusted.
 Article XIII – For the maintenance of the public force and for the expenditures of
administration, a common contribution is indispensable; it must be equally distributed to all
the citizens, according to their ability to pay.
 Article XIV – Each citizen has the right to ascertain, by himself or through his representatives,
the need for a public tax, to consent to it freely, to know the uses to which it is put, and of
determining the proportion, basis, collection, and duration.
 Article XV – The society has the right of requesting an account from any public agent of its
administration.
 Article XVI – Any society in which the guarantee of rights is not assured, nor the separation of
powers determined, has no Constitution.
 Article XVII – Property being an inviolable and sacred right, no one can be deprived of
private usage, if it is not when the public necessity, legally noted, evidently requires it, and
under the condition of a just and prior indemnity.
 Controversies
concerning human rights
 universality
 restriction to human beings
 socialist criticism

Week2
 Post-war understanding of human rights
 WWII, totalitarianism and camps
 WWII: between episode and paradigm
 nation-state: population, government and racism (Michel Foucault)
 totalitarianism, biopolitical power, statelessness and universality (Hannah Arendt)
 "the right to have rights"
 domestic legal order and the state of exception; camp as the paradigm of modernity (Giorgio
Agamben)
 Foundations of the post-war international legal order
 the United Nations
 the UN Charter
 international institutions of control
 the fragile alliance: international law and individuals
 Universal Declaration of Human Rights
 Universal Declaration of Human Rights
 Franklin Delano Roosevelt's Four Freedoms: 1) of speech, 2) of worship, 3) from want, 4)
from fear
 UN Commission on Human Rights and the UDHR Drafting Committee
 Adoption: 10 December 1948
 legal status
 influence on international acts
 influence on domestic legislation, especially constitutions
 juridisation of human rights
 Universal Declaration of Human Rights:
voting countries


 Universal Declaration of Human Rights:

preamble
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members
of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have
outraged the conscience of mankind, and the advent of a world in which human beings shall
enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as
the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion
against tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in
fundamental human rights, in the dignity and worth of the human person and in the equal
rights of men and women and have determined to promote social progress and better standards
of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in co-operation with the United
Nations, the promotion of universal respect for and observance of human rights and
fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance for
the full realization of this pledge,
 Genocide
 The concept of genocide
 author: Rafał Lemkin
 historical examples of genocide
 the Genocide Convention: Convention on the Prevention and Punishment of the Crime of
Genocide (1948)
 Definition of genocide (Art. 2)
genocide means any of the following acts committed with intent to destroy, in whole or in part,
a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
 Punishable acts(Art. 3)
The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
 Prohibited exemptions
Article IV
Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished,
whether they are constitutionally responsible rulers, public officials or private individuals.
Article VII
Genocide and the other acts enumerated in Article 3 shall not be considered as political crimes for
the purpose of extradition.
 Jurisdiction
Article V
The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the
necessary legislation to give effect to the provisions of the present Convention and, in
particular, to provide effective penalties for persons guilty of genocide or any of the other acts
enumerated in Article 3.
Article VI
Persons charged with genocide or any of the other acts enumerated in Article 3 shall be tried by a
competent tribunal of the State in the territory of which the act was committed, or by such
international penal tribunal as may have jurisdiction with respect to those Contracting Parties
which shall have accepted its jurisdiction.
 Key concepts in human rights law
 Features of human rights
 universalism
 innateness
 inalienability
 inviolability
 equality
 anti-discriminatory dimension
 restrictions of human rights
 Generations of human rights
 the author of the concept: Karel Vasak
 first generation ("blue")
 second generation ("red")
 third generation ("green")
 fourth generation ("pink"?)
 Human rights protection
 methods of protection: preventive / repressive
 claim rights v. liberty rights
 obligations of the state: negative / positive
 applicability: vertical / horizontal

Week3
 The system of
European law
 What is the system of European law?
 narrow understanding: EU law
 broad understanding: the European legal area
- regional international law
- ECHR
- EU law
- national systems of law
 inherent legal pluralism
 The role of human rights in the system of European law
 the task of human rights protection
 human rights as a symbolic grounding of normative systems
 human rights as the language of communication between normative systems
 Constitutive elements of European human rights law
 International law
 International law
 universal human rights documents
 1966:
- International Covenant on Civil and Political Rights
- International Covenant on Economic, Social and Cultural Rights
 Convention on the Prevention and Punishment of the Crime of Genocide (1948)
 International Convention on the Elimination of All Forms of Racial Discrimination (1965)
 Convention on the Elimination of All Forms of Discrimination Against Women (1979)
 Regional international law
 the Council of Europe
 the European Convention on Human Rights (1950)
 control mechanism: the European Court of Human Rights
 The European Convention on Human Rights:
history and effectiveness
 origins
 signing: 1950
 founding concept: international, (semi-)judicial control over states' compliance with human
rights norms
 development:
- additional protocols
- dynamic interpretation
- growing efficiency of the control system
 currently it is the most effective system of human rights protection in the world
 Constitutionalisation of ECHR law
 international law v. constitutional law
 the ECtHR as a quasi-constitutional court of Europe
 constitutionalisation of ECHR law

ECHR judgment from 23 March 1995 in the case Loizidou v. Turkey, app. no. 15318/89, p. 75:

the Convention [must be treated] as a constitutional instrument of European public order

(ordre public)
 Fundamental rights protection in the Communities / EU
 Fundamental rights protection
in the Communities / EU
 human rights vs. fundamental rights
 economic focus of the Communities
 deficiencies in fundamental rights protection
 The development of
European integrational organisations
 1950: project of European Defence Community
(Art. 3 of the EDC Treaty imposed the obligation of respecting public liberties and
fundamental rights of individuals)
 1951: European Coal and Steel Community
(marginal references to human rights)
 1953: project of European Political Community
(the ECHR was meant to become part of the EPC Treaty)
 1957: European Economic Community (references to human rights were scarce and limited to
economic context) and European Atomic Energy Community
 1992: the European Union as an umbrella organisation for the three Communities
 2009: the unified European Union
 Development of fundamental rights protection in the ECJ's jurisprudence
 in the 70s the ECJ began to develop a doctrine of fundamental rights protection, without
having sufficient grounds in the Treaties:
- in Stauder (29/69) the ECJ found that fundamental rights belong to general principles of
Community law and must be protected by the Court
- in following cases (Internationale Handelsgesellschaft, 11/70, Nold, 4/73, Rutili 36/75) the
ECJ determined more precisely the source of these rights: (1) constitutional traditions of
Member States, (2) treaties on human rights adopted by Member States, especially (3) the
ECHR
 gradually, the ECHR became a dominant source of fundamental rights, "having unique
importance" (judgment in Johnston, 222/84) for Community law and being "the standard
element of its interpretation" (ruling in Kremzow, C-299/95)
 nevertheless, the ECHR has never been used directly in Community / EU law; it is just a
source of general principles
 Fundamental rights in EU primary law:
Art. 6 TEU
1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental
Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December
2007, which shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as defined
in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the
general provisions in Title VII of the Charter governing its interpretation and application and
with due regard to the explanations referred to in the Charter, that set out the sources of those
provisions.
2. The Union shall accede to the European Convention for the Protection of Human Rights and
Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in
the Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human
Rights and Fundamental Freedoms and as they result from the constitutional traditions
common to the Member States, shall constitute general principles of the Union's law.

 Fundamental rights in EU primary law:

The Charter of Fundamental Rights
 history of the CFR
 status of the CFR
 its novelty
 relations to the ECHR:

- the ECHR was the principal model for elaboration of the CFR,
- the so-called horizontal clause from art. 52 (3) CFR stipulates:

In so far as this Charter contains rights which correspond to rights guaranteed by the
Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and
scope of those rights shall be the same as those laid down by the said Convention. This
provision shall not prevent Union law providing more extensive protection.
 Domestic legal orders
 Domestic legal orders of European states
 national constitutions
 examples:
Art. 1 of the German Basic Law (Grundgesetz from 1949):
Die Würde des Menschen ist unantastbar. Sie zu achten und zu schützen ist Verpflichtung
aller staatlichen Gewalt.
Human dignity shall be inviolable. To respect and protect it shall be the duty of all state
authority.
Preamble to the French Constitution (1958)
Le peuple français proclame solennellement son attachement aux Droits de l'homme et aux
principes de la souveraineté nationale tels qu'ils ont été définis par la Déclaration de
1789, confirmée et complétée par le préambule de la Constitution de 1946, ainsi
qu'aux droits et devoirs définis dans la Charte de l'environnement de 2004.
The French people solemnly proclaim their attachment to the Rights of Man and the
principles of national sovereignty as defined by the Declaration of 1789, confirmed
and complemented by the Preamble to the Constitution of 1946, and to the rights and
duties as defined in the Charter for the Environment of 2004.
 Week4
 Basic information
 Naming conventions
 The Convention for the Protection of Human Rights and Fundamental Freedoms vs.

The European Convention on Human Rights

 Other names of the ECHR
 Convention européenne des droits de l’homme (CEDH)
 Europäische Menschenrechtskonvention (EMRK)
 Convención Europea de Derechos Humanos (CEDH)
 Convenzione europea dei diritti dell’uomo (CEDH)
 The ECHR as a treaty
 the concept of international agreement
 individuals and international law
 obligations inter partes / erga omnes
 the character of the ECHR rights:
The ECtHR’s judgment in Ireland vs UK from 18 January 1978, application no. 5310/71, p.
239:
Unlike international treaties of the classic kind, the Convention comprises more than mere
reciprocal engagements between contracting States. It creates, over and above a network of mutual,
bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a
"collective enforcement".
 The law of the ECHR
 the notion of „ECHR law”
 case law of the Strasbourg organs
 Jurisdiction and states' obligations
 The notion of state jurisdiction
under the ECHR
Article 1
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms
defined in Section I of this Convention.
Les Hautes Parties contractantes reconnaissent à toute personne relevant de leur juridiction les droits et
libertés définis au titre I de la présente Convention.
 The importance of Article 1 ECHR
 the meaning of Art. 1:
 Article 1 together with Articles 14, 2-13 and [56] demarcates the scope of the Convention
ratione personae, materiae and loci; it is also one of the many Articles that attest the binding
character of the Convention. Article 1 is drafted by reference to the provisions contained in
Section I and thus comes into operation only when taken in conjunction with them; a violation
of Article 1 follows automatically from, but adds nothing to, a breach of those provisions;
hitherto, when the Court has found such a breach, it has never held that Article 1 has been
violated.

Ireland v. the UK, p. 238

 defining the relations between the state and the individual
 international obligation and international responsibility
 Personal scope of application
of the ECHR
 universality of definitions (everyone, nobody)
 irrelevance of citizenship

- prohibition of discrimination on the ground of nationality (art. 14)

- minor exceptions: art. 16, art. 3 of Protocol no. 4, art. 3 of Protocol no.1
 beneficiaries of protection:

(1) natural persons

(2) legal persons
(3) groups of individuals (including associations, companies etc.)
 exclusion of public legal persons and organs controlled by state authorities
 Territorial scope of application of the ECHR
 the notion of territorial jurisdiction
 primacy of territorial jurisdiction (Banković v. NATO countries case)
 effectiveness of control over a given territory

cases Cyprus v. Turkey, Ilaşcu v. Moldova and Russia

 extraterritorial application of the Convention:

- the criterion of overall effective control (Loizidou v. Turkey case)

- responsibility for violations arising from extradition or deportation (Soering v. the United
Kingdom case)
 Temporal scope of application
of the ECHR
 responsibility begins with the entry into force of the Convention in regard to each party
 non-retroactivity of the ECHR
 responsibility for procedural violations in investigating facts from the date of entry into force
of the Convention (case Šilih v. Slovenia)
 The scope of state’s responsibility
 the state is responsible for all domains of its functioning, including those regulated
constitutionally or pertaining to national security and sovereignty
 the state is responsible for actions of:

- the executive, the legislative and the judiciary,

- central, regional and overseas authorities,
- organs of public authority and any other units, which are not sufficiently independent from
the state, either institutionally or functionally (according to the criteria of ownership, carrying
out public functions and effective control of the state)
 Obligations of the parties to the ECHR
 material / procedural
 freedom in choosing methods of realisation of the ECHR obligations, curbed by the principle
of subsidiarity
 the ECHR in domestic law:

- incorporation

- indirect methods: British Human Rights Act 1998

(declarations of incompatibility, remedial orders)
 Positive obligations under the ECHR
 negative and positive obligations
 positive obligations demand that the state should:

1) adopt laws which provide legal framework for enjoying rights and freedoms,

2) adopt procedures protecting rights and freedoms and allowing of opposing violations,

3) undertake any measures necessary to safeguard the enjoyment of rights and freedoms also
against the actions of non-public persons and entities
 horizontal application of the ECHR means that the state is obliged to:

1) create an infrastructure of norms which safeguard that private entities respect rights and
freedoms,

2) safeguard that the ECHR be respected in resolving disputes between private persons and
entities