1. The European Concept and Origins of Human Rights Protection READING ITEM Protection of Human Rights: Concept and Origins

1. The European Concept and Origins of Human Rights Protection READING ITEM

Protection of Human Rights: Concept and Origins

This Reading Item gives a general overview on the evolution of Human Rights Protection in Europe. It is based on a theoretical approach, following the evolution of European philosophical and political thoughts. It conducts to a general definition of Human Rights and gives a list of the different legal sources of their protection. (Edited by Péter Kruzslicz)

INTRODUCTION AND LEARNING OUTCOMES

The understanding of the theoretical background of the European concept of Human Rights protection (PHRE) implies a good knowledge of the evolution of the philosophical and political thoughts. Based on the theories of the two main schools about the origin of Human Rights, some fundamental consequences about their protection can be deduced. As for their legal sources, the three different dimensions (international, regional and national) should be examined as well as written and unwritten sources should be presented for a complete overview of the fundaments.

When we talk about the concept and the origins of Human Rights protection, it is to be understood in a most general way. As presented below, the concept surpasses the legal framework, it is based on the evolution of thoughts, and their political, social and economic background should also be considered as well as some cultural aspects for the good understanding of the subject matter. It is only in such a general approach that the question about the origins of rights can be answered so that not only the sources could be identified correctly, but also the objective of protection and its consequences could be analyzed.

Learning outcomes

1.General understanding of the idea and the fundaments of Human Rights Protection 2. Capacity to comrehend Human Rights from a general philosophical and political aspect

Rights, Humanism, Protestant Reform of the Church, Liberal Revolutions, Individualism, Legal Norms, Legal Sources, Abuses, Security Rights, Process Rights, Liberties and Political Rights, Equality Rights, Group Rights, United Nations, Council of Europe

Necessary time: 1,5-2 hours

Recommended Reading

1. Universal Declaration of Human Rights (UDHR, 1948)

2. Robert Alexy: Rights and Liberties as Concepts. In: Michel Rosenfeld – András Sajó (ed.):

The Oxford Handbook of Comparative Constitutional Law (OUP, 2012, 283-297)

1.1. A General Overview of Human Rights Protection

As a theoretical introduction of any lecture on Human Rights protection demands, it is important to highlight not only the general definition of Human Rights and the fundamental objective of their definition, i.e. their effective legal protection, but it is also necessary to provide the context of the idea: the social, political, economic as well as the cultural background.

The legal definition of Human Rights and their place and role in international, European and national legal systems could be understood correctly only through such a more general approach. Through their abstract and general character and importance, Human Rights should be considered as more than simple legal norms. Studying the evolution and the concept of Human Rights protection in Europe permits a deeper comprehension of the subject matter.

As much as Human Rights reflect the political and economic fundaments of European societies, they are also based on social and even cultural values. They result from the permanent evolution of philosophical thoughts on the general connections between individuals and communities (i.e.

persons and societies), on public power and its exercise by public authorities, and on freedom and protection of the people and the realization of common goals set by states.

As for a general understanding of the social and political background of Human Rights, a quote from a most important milestone in their evolution, the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations, in Paris, on the 10^th of December 1948, Preamble, resumes the basic ideas:

“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.”

It is to be understood that the matter of protection of Human Rights is a more general issue than one to be answered through a simple legal approach. However, the understanding of the legal framework will be a key element for the protection of Human Rights. Legal aspects of Human Rights should be placed and analyzed in the general context of the concept and its evolution. This concept is in continuous development dependent on the political and legal evolution of the State, its concept and legal system.

1.2. The Basic Legal Notions of Human Rights Protection

If we want to understand not only what Human Rights are and how they relate to a more general background and what their role is in a legal framework, but also what the protection of Human Rights is about in Europe, some basic legal notions are to be explained first. Dealing with these notions also contributes to a comprehensive approach to the idea and the concept of Human Rights.

State:

As a basic legal notion, in the political and social reality of modern life, the concept of state seems to be very easily understandable. The United Nations comprises almost two hundred States and even though they can be very different from many various aspects, from a legal point of view, they respond to three basic criteria:

 Territory is one of the constitutive elements of the State. It is defined usually in international law as the neighboring countries’ claims and interests should also be taken in consideration. The borders, even if in some cases questions arise regarding their scope on land, air and sea, can be exactly determined. This is first a so-called geographical reality that describes the State. It can be, as we have seen, the most evident.

 Population also remains a key element for the State. Defined by national constitutional law, it comprises the national society, a special group of people in connection with the State, these people can be subjects of rights and obligations. From a sociological point of view, the population can be described as a diversified group of people and some interesting conclusions can be drawn about them in different contexts. From a legal approach, different theories exist to create the connection between the persons and the States.

o The basic concept is the Nation.

 For some countries, the Nation is a political notion and the basic element is citizenship. All people having the citizenship of the country are considered as part of the Nation.

 For other countries, the Nation is a cultural nation. The connection between a person and the State should also be founded on cultural, for example, linguistic or even religious basis.

The connection between the person and the State is a very special relation described by public law. From both parts, rights and obligations appear.

 Sovereignty is the most difficult notion related to the State. It demands a supreme power (authority) that is exercised on the territory and the population, it is also a constitutive element of the State. On one hand, sovereignty is a political question as it is related to the existence and the methods of the power exercised in the framework of the State. But it is, on the other hand, also a legal topic. From a legal point of view, such a supreme power is difficult to be described. In a general understanding, through the historical evolution of the notion, we understand, that it implies the autonomy and the independence of the State. As autonomous, the State can do whatever it decides to do inside the territory and in relation with its population, it regulates different matters freely. As independent, the State can take part in international cooperation as equal with other States. Without such a supreme power, even though the concept of sovereignty is questioned especially because the development of international relations, a State cannot exist.

Constitution:

From a legal point of view, a State is created based on its constitution.

Constitutions can be written or non-written, but should be in force so that a modern, constitutional State can exist.

Apart of the constitution of the State, they deal with two main subjects:

- fundamental rights - institutional framework

As such, they are not only creating the State, but they also limit with legal rules the exercising of the supreme power.

Constitutionalism:

It means that legal norms of the Constitution are respected, the State ensures the conformity of all norms it creates with the Constitution and in a more general way as it limits public power. It implies legal limits to the exercise of power as for institutional norms and fundamental rights, including Human Rights and political freedoms.

DISAMBIGUATION – Constitutionalism vs. Constitutionality

As argued above, constitutionalism requires the limitation of public power in protecting human rights through institutions and processes.

As for institutions, generally, we distinguish between a positive legislator (i.e. the body that adopts positive law, usually the parliament) and a negative legislator (i.e. the body that has the power (in certain processes) to quash the effect of any positive law, should it not be in conformity with the Constitution, in other words, should it not meet basic parameters of constitutionality.

(These bodies, negative legislators, are normally those that have the power to adjudicate legal disputes based on the constitution, also in protecting fundamental and human rights: constitutional courts.)

For a good understanding of Human Rights as well as to understand the evolution of their concept, the above notions should be well-known.

The concept of Human Rights’ protection is strongly related to the appearance of the modern, constitutional state with its general characteristics. Human Rights are about the protection of the persons from the State and the supreme power but within the framework of the constitutional states.

For a better understanding of the evolution, as for the introduction of the next chapter, it is necessary to highlight that

1. The evolution of the concept is not independent from political and legal development. The two phenomena should be taken into consideration simultaneously as one affecting the other.

2. The evolution of the concept is based on a dialectic of philosophical thoughts, pointing towards the so-called liberalism, wherein the importance of individuals is highlighted, then the general legitimating role of Church in Europe is questioned, and finally, a philosophical background is created to describe modern States.

1.3. The Evolution of Philosophical and Political thoughts

Political evolution: the concept of State

Philosophical evolution: the concept of the power

LIberalism

Renaissance and

Humanism

Enlightenment

Reformation

As Human Rights are not only abstract and general legal norms but they are also based on a whole concept related to power and its effects on individuals, for a better understanding of their origins, a short overview of the development of European philosophical thought is necessary, so that Human Rights can correctly be defined in the right context.

Antiquity:

As the abstract thinking and the conceptualization of social matters appeared in the Antiquity, this period can also be mentioned for our topic even though it is more important for the method than for the results of our way of thinking, the conclusions of Antique philosophers will provide the basis of further evolution.

 During this period, with the development of Greek Polis (city states) and different forms of government, a general questioning of good and bad governance came about. This sort of thinking lead to interesting conclusions about political power and its limits and about the legal framework of the government even though some cannot be directly used for modern times.

 Not only the historical development of Polis and its government but also the comparative study of rules and governments, their similarities and differences has appeared on the basis of philosophical thought, even conclusions were drawn about the universality and the singularity of the characteristics of the existing systems.

The Middle Ages:

For a longtime, in European history, after the beginning of the so-called Medieval Age, philosophical thought about the source and extent of power was restricted to the framework of theology, as the power of the Church was at the origin as well as at the reins of the government in no need of scientific underpinning.

 The Catholic Church was the foundation of the monarchs’ power and thinking about power was related to thinking about God and theology. Therefore, philosophers such as Saint Thomas of Aquinas used the methodological thinking about, for example, natural law, and the reason for all acts is always found in God.

 It is by the end of this period, even though on the very same foundations of religious legitimacy, that the conceptualization of power begun. Authors like Nicolo Machiavelli and Jean Bodin were at the origin of that evolution. For the first, studying the power and its exercise was a topic where the reality of the power also needs to be taken into consideration.

For the second, the abstract notion of the sovereignty appeared so that the monarchs’ power could have a legal definition independent of his person.

Humanism and Protestant Reformation:

By the end of the Medieval Age, new ideas appeared, in reference to the former period, but in a very new context, first in arts then also in social sciences. Following general cultural, but also social and economic changes, the human being as an individual appears at the heart of philosophical thought.

Consequently, the role of the community and the absolute power of the Church and the monarchs have been brought into question. The foundation of the authority, in cultural or scientific terms but also in the field of politics, should be identified in connection with the individuals, which brings us to the idea of a legal framework letting the sovereign exercise its sovereign powers but also guaranteeing the rights of the persons subjected to it in exchange.

Enlightenment and Liberal Revolutions:

The theories of the philosophers of Enlightenment is proof to continued evolution as their ideas contributed to a new, legal, modern constitutional framework with the liberal revolutions in Europe.

These will be the bases of exercising public power and thus, also for Human Rights protection. The public authority will become democratic, and the rights of persons, being at the origin of national sovereignty (i.e. of public power), will be guaranteed by the law.

1.4. The Origins of Human Rights

From the beginning of the legal ‘perception’ or conceptualization of Human Rights, the question about their origin has been raised. Two schools developed with two different answers to that question, both of them having a great influence on their protection.

 As a result of Enlightenment, the idea that Human Rights are natural rights appeared and spread in European legal theory. “All people were born and remain free and equal in rights” – said the philosophers and the first legal documents not constituting but declaring those rights.

The Theory of Natural Rights: The idea implies that every human being have those rights and should benefit from their protection. The fact of being a human being, and of living in a human society demands that those rights should be protected even without the existence of a dedicated legal framework.

This theory concludes not only on the fact that Human Rights are more than simple legal norms, they are social values, but also that they are universal. So, it is at the origin of a general aim of their protection all over the world, justifying some political intervention, but also subject to continuous extension, as for example, nowadays not only human but also animal rights are subject to discussions.

 From a strictly and only legal point of view, the idea that only legally determined Human Rights exist and can be protected also appeared. These rights are described not as general human but as positive legal, so-called fundamental rights, and they not always have to be written but need to be included in certain sources of law. These sources can be written or non-written, international or national.

Legal Positivism: The theory only asks that they be legally defined, be it as a result of jurisprudence or be it in the form of general principles, their legal protection can be effectively ensured in this framework if they are positively defined.

Naturalism

natural rights

universality

Positivism

positive rights

legal

protection

1.5. The Definition of Human rights

In the most general approach, Human Rights are (i) norms that

(ii) help protect

(iii) all people everywhere

(iv) from severe

(v) political, legal and social abuses (of power)

The general definition of Human Rights highlights some basic characteristics, all of which have to be present together so that we could speak about Human Rights.

As such:

1. They have, as values, a universal scope, by them, all people can be protected everywhere 2. They are high-priority norms, it is from severe abuses that they help to protect people 3. They are, as legal norms, benefitting from a legal protection.

Universalit y

All People

Everywhere

High- priority

Severe

Abuses

Legal protection

Norms

Protection

Human Rights are various, they can be classified in many categories according to their evolution:

(i) Security and process rights as well as liberties, political rights and equality rights are the first generation of Human Rights.

1. Security and process rights are giving the basic framework for people the defend themselves against the public power.

2. Liberties and political rights help people to be a part of the new, modern and constitutional community of the State

3. Equality rights defend people against discrimination as they make them benefit from the same relationship between persons and the State.

(ii) Social or welfare rights (including cultural and economic rights) are the second generation of Human Rights with a new approach on equality.

1. The so-called socio-economic rights define obligations of the State so that its action is to be guided by the welfare of the persons.

2. This new generation of rights is completed with a new aspect of equality emphasizing on the equality of chances and not only the equality of rights.

(iii) Group rights or solidarity rights emerge as a so-called third generation.

Human Rights cannot only be exercised by individuals, but communities as holders of these rights are important in social life, which brings about the idea of ensuring rights for minorities or future generations as groups benefitting also from protection against the actions of the power.

1. Globally enforceable rights – necessitating global cooperation in successful assurances for these rights – include e.g. the right to a healthy environment, peace, drinking water

2. Group or solidarity rights provide added protections for vulnerable groups, also starting out from the international level, however, successful assurances for their enforceability do not require intense international cooperation. e.g. patients’ Rights, disabled rights, rights of the child, etc.

Based on the idea of the importance of human beings and taking the legal instruments of the national constitutional but also the international level into account, Human Rights cover very important fields. Thanks to a legal definition, their protection can be effective, however, they remain not only legal and political but also social and cultural values.

1.6. The Sources of Human Rights (in law)

Even though Human Rights can be considered as natural rights, legal sources should be defined also at their origin providing them effective legal protection.

Different kinds of sources can be identified:

And the main sources can be the following:

National

Written

Unwritten

International

Written

Unwritten

National

Constitutions

Declarations

Internationa l

Regional Frameworks

(CoE, EU)

United Nations

Unwritten

General Principles

Jurisprudence

Questions for Self-Check

1. Why can Human Rights be considered as cultural values?

2. How did the philosophy of the Antiquity contribute to the modern concept of Human Rights protection?

3. What are the most important philosophical milestones in the evolution of the concept of Human Right’s protection?

4. What does the universality of Human Rights imply?

5. Define and describe the three generations of Human Rights (with examples).

6. What are the main sources of Human Rights?

This teaching material has been made at the University of Szeged, and supported by the European Union. Project identity number: EFOP-3.4.3-16-2016-00014