EU Law & European System of HR Protection Introduction JUSTIN Judicial Studies Institute Masaryk University Katarína Šipulová Brno, 23 September 2024 Course requirements •13 lectures including: •Guest lecture by State Agent representing CR before the ECtHR (October 2024) •Visit of the SAC & Debate with Michal Bobek & Ivo Pospíšil (9 December 2024) • •Careful! Bank holidays – 28 October 2024 & Reading week 8 October • •Position papers •6 position papers, delivery is mandatory •Class will be divided into two groups, one submitting on odd, one on even weeks. •2700 characters •Submitted on Sunday noon before the class • •Group projects •2 group projects written in teams of 3 •Comment on an interesting problem/judgment •7000 words •10 November 2023 (TP1) and 7 December 2023 (TP2). • •Final exam •Written, 3 open-ended questions • Is justice important? •Trolley problem • • • • The Trolley Problem — Origins. The Trolley Problem is a thought… | by Sara Bizarro | Medium What is just? •Consequentialist moral reasoning • •The just thing to do is to maximize utility • •Categorical moral reasoning • •Morality is in moral duty, moral quality of our acts • • • • What is just? •How do these considerations underline Law and HR Law? •What are HR? •Why do we need HR? •Who is to define HR? • • • • The notion of human rights •What is a human right? • •What is human? •Start and end of life? • •What is a right ? •Rights v duties •Law v right • •Where do rights come from? • •Do we need to justify human rights? Is law enough? • •From philosophy of HR to compliance with human rights • •Limits and conflicts of human rights • • • • Approaches to Studying Human Rights •Interdisciplinary approach • •Law •Social (Political) Sciences •Philosophy •What do they tell us? • • • •Theory •Cases • • • • Content of the course •HR as a driving force of constitutional processes • •Council of Europe – European Court of Human Rights •Idea of regional HR protection •Commitment and Compliance: ECtHR, Committee of ministers, State Agents •Key areas: elections, discrimination, private life, migration, fair trial • •European Union – Court of Justice of the European Union •HR as a part of European Integration? •Court of Justice – driver of the integration, spill-over through case—law •EU law through the lenses of national courts •From HR to Democracy • • • • • HR controversies 1.Foundation of rights 2. 2.Conflicts of Rights 3. 3.Generations of rights 4.Relativism versus universalism 5. 5.Human rights and War 6. 6.Animal Rights Foundations of human rights • Human Rights – brief historical sketch •Natural-rights based proclamations •Rights as an opposition to absolute monarchy •Rights as a response to emergent capitalism • •Positivisation in national legal systems •Secularisation of political thinking •Social science and sociology • •Drive towards universality of rights • • • •International law turn: from morality and philosophy to compliance • • • • Universal Declaration of Human Rights

Eleanor Roosevelt was instrumental in drafting The Universal Declaration of Human Rights in 1948.

The Code of Hammurabi (1792-1750 B.C.) • •The oldest surviving text establishing the rule of law •“to prevent the strong from oppressing the weak and to see that justice is done to widows and orphans” • •Innocence until proven guilty • •BUT, also: harsh laws of retribution • • • • • Who are the 18 greatest lawgivers of all time? - Quora Hammurabi, frieze in courtroom of United States Supreme Court | Ancient mesopotamia, Ancient civilizations, Mesopotamia Cyrus Cylinder • •Cyrus the Great • • concurred the city of Babylon (539 B.C.) • • • • • • • Who was Cyrus the Great? Cyrus Cylinder The Cyrus Cylinder - World History Encyclopedia Cyrus Cylinder • „I announce that I will respect the traditions, customs and religions of the nations of my Empire, I will never let any of my governors and subordinates look down or insult them until I am alive. From now on, till God grants me the kingdom favour, I will impose my monarchy on no nation. Each is free to accept it, and if any one of them rejects it, I never resolve on war to reign. Until I am the king of Persia, Babylon, and the nations of the four directions, I never let anyone oppress any others, and if it occurs, I will take his or her right back and penalize the oppressor. Until I am alive, I prevent unpaid forced labor. Today, I announce that everyone is free to choose a religion. People are free to live in all regions and take up a job provided that they never violate other’s rights. No one could be penalized for his or her relatives’ faults. I prevent slavery and my governors and subordinates are obliged to prohibit exchanging men and women as slaves within their own ruling domains. Such a tradition should be exterminated the world over.” • • • • • • The petition of rights 1628 •Charles I x Parliament • •X. They do therefore humbly pray your most excellent Majesty, that no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by act of parliament; and that no one be called to make answer, or take such oath, or to give attendance, or be confined, or otherwise molested or disquieted concerning the same or for refusal thereof` and that no freeman, in any such manner as is before mentioned be imprisoned or detained; Declaration of Independence 1776 •We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. •… •That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, •… •That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new government Human rights and the role of the state •HR first to keep state out of private life and property • •Then, used by oppressed minorities for recognition • •Recently, to control the state power (against individual abuses) • • • • Post WW2 • Do we need justification of HR? Is law and legal language enough? Rawls: in a pluralistic world we cannot build our public commitment to human rights on any controversial account of the ‘truth’ about humanity or the good. We have to return, instead, to shared ideas embedded in the culture of a liberal democracy - Conflict of Human Rights • Conflicts of Rights 1.Conflict of HR and values 2. 2.Conflict of HR and politics 3. 3.Conflicts of 2 human rights HR and politics -In democracies, differences which rights should be protected are sorted out via political process - -What if even democratic legislator can push back some rights? •Who is the source of rights? •Does legitimate Parliament have power to remove rights? If yes, do we need to revisit the question who is the source of HR? • •Are some rights so fundamental that they MUST NOT be limited by a political decision? •If yes, how to we recognize them? -HR as a result of the creation of law -HR treaties as a main source -Separation of powers and checks and balances of judicial branch -Individual protection v negative decision-making - Generations of Rights • Generations of HR •1. Civil and political rights •Right to partake on the government of one’s country • • •2. Economic and social rights •Right to adequate standards of living, education, cultural participation • • •3. Rights of 3rd Generation (group rights) •Fraternity, solidarity, group rights = communal aspects of human beings • •4. New rights •Environment, digital, AI • 2nd Generation of HR and positive v negative rights •Challenges: •Enforcement •Universality •Paramount rights •Rights applicable to all classes • • •Negative rights = rights of forbearance (e.g. torture) •Violation = direct infliction of injury (act of commission) • •Positive rights = securing a right •Violation = failure to confer a benefit (act of omission) • •Is there a moral / philosophical difference? • Group rights •Rights held by a corporate entity that is not reducible to its individual members • •Need to be universal • •Accommodate legitimate interests of oppressed groups • •Right of people to self-determination • •Rights of indigenous peoples • •Right to cultural heritage 7 skeptical questions about group rights •1. How do we identify the group? • •2. What particular HR should the group have? On what grounds? • •3. Who exercises the group right? (the problem of agency) • •4. Increased risk of conflicts of rights • •5. Are the purported group rights necessary? • •6. Why should we expect group rights to succeed where individual rights have failed? • •7. Are group rights the best way to protect or realize interests, values and desires of a group? Universalism versus relativism • Ignatieff – attacks on universality of HR •Islam • •The West • •Southeast Asia INGLEHART - WELZEL • Diagram Description automatically generated Measuring human rights (Landman) •Political Sciences: causes and consequences of cross-national variation in HR protection •Purpose of measuring •Contextual description and documentation •Classification •Monitoring states •Mapping and pattern recognition of HR violations •Secondary analysis – social and political variables •Advocacy tools • •HR measures used e.g. by development agencies Measuring human rights V-DEM Measuring human rights V-DEM Measuring human rights Polity V https://www.systemicpeace.org/polityproject.html Global Democracy, 1946-2016 Measuring human rights Political Terror Scale Measuring human rights Measuring human rights https://fragilestatesindex.org/ Measuring human rights https://worldjusticeproject.org/rule-of-law-index/global/2020 Measuring human rights •http://ourworldindata.org/human-rights Measuring human rights •humanrightsdata.com • • •The CIRI Human Rights Dataset contains standards-based quantitative information on government respect for 15 internationally recognized human rights for 202 countries, annually from 1981-2011. Measuring human rights Measuring human rights Expansion of rights •Rhetoric of rights • •Subject of rights •Rights holders •Potential rights perpetrators (duty bearers) • • •Rights in IR (criminal courts, HI, R2P, extratorritoriality, universal jurisdiction) • • • Expansion of rights (RHETORIC) • • • Expansion of rights (RHETORIC) • • • Expansion of rights (NUMBER) • • • Expansion of rights (in IR) • • • Smekal, Šipulová, Pospíšil, Janovský, Kilian. Making Sense of Human Rights Commitments: A Story of Two Emerging European Democracies. MUNI Press 2017. Human Rights and Democracy •Hafner-Burton, Mansfield and Pevehouse (2015). Human Rights Institutions. Sovereignty Costs and Democratization. British Journal of Political Science Vol. 46, No. 1. • • • • Expansion of rights (NUMBER) • • • Smekal, Šipulová, Pospíšil, Janovský, Kilian. Making Sense of Human Rights Commitments: A Story of Two Emerging European Democracies. MUNI Press 2017. Human Rights and Democracy •HR and democracy = reinforcing couple •Which has priority? • •Human rights v citizen rights •Human rights and public institutions •Protection of •Protection from •Addressees of claims •Internationalization of HR v Internationalization of Democracy •Severing direct links • •Why do countries commit to human rights? •Which countries commit to human rights? • • • • WWW.JUSTIN.LAW.MUNI.CZ