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## Concept of Human Rights Human rights are understood as a set of rights inherent to all human beings simply by virtue of their humanity, rooted in human dignity, and primarily intended to protect individuals against state authority. While abstract definitions exist, their practical application often involves complex philosophical and legal debates, leading to challenges in defining their precise scope and ensuring consistent protection. ### Fundamental rights Fundamental rights are considered supreme rights within a legal system, holding a high priority. However, differentiating them from ordinary rights can be challenging in practice. Existing theories sometimes under-protect or over-protect certain situations, leading to a complicated status for these rights. The intuitive feeling of what constitutes a human right can be misunderstood due to various interpretations. #### Definitions of human rights * **Textbook Definition:** "The right that everyone is entitled to because of being a person." This definition is criticized for its lack of specificity regarding the nature of these rights and highlights the intersection of philosophy and law in understanding human rights. * **Lawyers' Definition:** Human rights are typically identified as those rights found within human rights treaties. This legalistic approach raises the question of how these rights became codified in treaties and whether all rights within treaties are equally considered "human rights" in a fundamental sense. #### Common characteristics of human rights 1. **Protection of the individual against abuse of authority:** Human rights are fundamentally designed to shield citizens from arbitrary interference by public authorities, aligning with the principle of the rule of law rather than the rule of men. They emerged with the modern state and have roots in historical documents like the Magna Carta which aimed to protect citizens against governmental overreach. Early charters, such as those in Liège, asserted individual tranquility within one's home. However, these early protections were often specific to certain categories of people and could be revoked by authorities. The late 18th century revolutions in France and America marked a turning point, introducing general catalogues of rights derived from being human beings and members of a political society. By the 19th century, constitutions began to include lists of fundamental rights, with the Belgian constitution of 1831 being a notable example. Criticism arose in the late 19th century from socialist and liberal thinkers who argued that civil and political rights alone were insufficient without addressing material circumstances, leading to the recognition of second-generation rights focused on claims against the government. The concept that the state is solely an "enemy" of human rights is now considered outdated, as states are seen as both potential threats and essential protectors [1215](#page=1215). 2. **Human dignity:** Human dignity is a cornerstone of human rights, particularly post-World War II, where it served as a justification for actions when existing laws were insufficient to address atrocities. The *Wackenheim v. France* case illustrates the complexities of human dignity, highlighting the conflict between individual autonomy and majority views, and raising questions about whose dignity is being protected. This concept can be contentious, with some arguing it is too vague and prone to abuse, while others see it as an indispensable ultimate remedy for legal systems. #### Generations of human rights The concept of human rights is often categorized into three generations: 1. **First generation:** Civil and political rights (freedoms and procedural rights). These are often termed "stay away rights" or "negative rights," imposing duties on the state to refrain from interference. 2. **Second generation:** Economic, social, and cultural rights (participation rights). These impose positive obligations on the state to act, such as providing education or healthcare. They are often framed as obligations of means rather than results, making judicial enforcement more complex due to their budgetary implications and progressive realization. 3. **Third generation:** Solidarity rights (collective rights), such as the right to peace or a healthy environment. These rights focus on collectivities rather than solely individuals and present challenges in defining the scope of the right and identifying the obligated parties. It is crucial to view these generations as interwoven and equally important, rather than hierarchical. The distinction between civil rights (inherent to being a person) and political rights (inherent to being a citizen) is also noted. ### Are all human rights "fundamental" rights? The distinction between fundamental rights and ordinary rights lies in the intensity of judicial scrutiny. Fundamental rights are given greater weight, influencing the proportionality assessment in legal conflicts. While philosophers may derive them from human dignity, positivists look to legal codifications like the Universal Declaration of Human Rights. The need for "quality control" in human rights standards has been highlighted. ### Holders of fundamental rights * **Individuals:** Human rights are fundamentally for individuals, regardless of their legal status or nationality. This means everyone within a state's jurisdiction is protected, without distinction. However, some rights, like the right to vote, may be limited by nationality. * **Private entities:** NGOs, associations, and companies can also be holders of fundamental rights, particularly those essential to legal systems like the right to a fair trial or freedom of expression, though not all rights (e.g., the right not to be tortured) are applicable to them. * **Collectivities:** Indigenous communities and traditional groups can hold human rights, particularly in the context of third-generation rights like self-determination. ### Bearers of the duty to respect fundamental rights * **States:** All branches of the state – legislative, executive, and judicial – are bound by human rights obligations. This includes all levels of public authority. * **Private individuals and entities (Horizontal application):** Traditionally, human rights were understood to apply vertically between individuals and the state. However, private parties can also threaten human rights. This "horizontal application" is often indirect: the state may be held responsible for failing to protect individuals from the actions of other private parties. When human rights are incorporated into domestic legislation, horizontal application becomes more straightforward. Conflicts between the human rights of different parties require the courts to strike a fair balance. #### Corporate human rights responsibility Transnational corporations wield significant power, and their involvement is crucial for protecting human rights in the socio-economic sphere. While they operate as private entities, their financial influence often surpasses that of states. Concepts like corporate social responsibility and due diligence are emerging to address their human rights impact, aiming to prevent "human rights washing." International regulations and national legislation are being developed to hold these companies accountable. ### Are fundamental rights absolute or relative? Fundamental rights are not absolute; exceptions can be made. Certain rights in the ECHR, such as the prohibition of torture and the right to life, are absolute and cannot be derogated from. Other rights can be limited if the restrictions meet specific criteria: a legal basis, a legitimate aim, and proportionality in a democratic society. #### Waiver of rights While individuals can agree on the *exercise* of their rights, they cannot waive the core protection of fundamental rights. Waivers are interpreted narrowly and cannot negate the fundamental essence of a right. Conditions for waiving rights include precision, limitation, and informed consent. #### Conflicts between fundamental rights and other interests, and between fundamental rights themselves Human rights treaties often provide frameworks for limitations. When fundamental rights conflict with other interests or with each other, the European Court of Human Rights (ECtHR) employs a balancing exercise to strike a fair balance. ### Fundamental responsibilities Rights inherently come with responsibilities. The concept of fundamental duties is increasingly recognized, although its integration into hard law varies across different legal systems. While some advocate for a universal declaration of human responsibilities, others express reluctance, fearing it could be misused to limit rights or impose undue burdens. Lawyers, in their role of identifying potential problems, often focus on how rights could be abused, including the imposition of responsibilities. ## Human Rights in International Relations and International Law ### International standards and international control mechanisms Following World War II, there was a strong global sentiment that human rights could not be adequately protected solely at the domestic level, leading to the development of international human rights law and control mechanisms. The Universal Declaration of Human Rights (UDHR) in 1948, though non-binding, proclaimed key human rights, with the intention of legally binding texts to follow. However, ideological tensions during the Cold War led to the development of two separate covenants in 1966: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). ### National sovereignty and international protection of human rights The principle of national sovereignty, enshrined in Article 2 of the UN Charter, generally prohibits interference in the domestic affairs of states. However, human rights are widely considered a matter of international concern, impacting global peace and security, and therefore fall outside the scope of solely domestic jurisdiction. Despite this, a trend of nationalism and populism has led to challenges against international human rights standards and institutions, with some advocating for a return of human rights protection to the national level [7](#page=7). #### Action in response to serious violations of human rights States and international organizations can respond to serious human rights violations through various measures: * **Economic measures:** These include "human rights clauses" in trade agreements, allowing for sanctions or even cancellation of agreements if human rights are severely violated. Economic sanctions, as authorized by the UN Charter (Article 41), can be imposed by organizations or individual states. However, their legality and impact on civilian populations are subjects of ongoing discussion, leading to the development of targeted or "smart sanctions." * **Use of force (military intervention):** Military interventions are sometimes justified by serious human rights violations, although their legality is often contested, particularly when lacking UN Security Council authorization (e.g., the NATO intervention in Yugoslavia in 1999). The concept of the "Responsibility to Protect" (R2P) posits that the international community has a responsibility to intervene when a state fails to protect its own population, but such actions are typically considered only in extreme situations and require UN SC authorization. ### Universality of human rights Human rights are conceived as universal, applying to everyone, everywhere. However, a long-standing debate questions whether international human rights standards reflect only Western values, with arguments often centering on individualism versus community focus, and the prioritization of rights over duties. This dispute intensified at the 1993 Vienna World Conference on Human Rights, which reaffirmed universality while acknowledging the importance of national particularities and cultural differences. Discussions on "traditional values" have emerged, particularly within the UN Human Rights Council, raising concerns that these values could be used to undermine universal human rights, as seen in resolutions proposed by Russia concerning traditional values and the protection of the family. Cases before the ECtHR, such as *Bayev and Others v. Russia*, illustrate how national traditional values can conflict with convention rights, with the Court often emphasizing the protection of minorities and refraining from endorsing majority views that restrict fundamental rights. ### Human rights law and international humanitarian law International humanitarian law governs wartime conduct, protecting civilians in armed conflicts. While distinct from human rights law, there is an overlap where rules protect civilians. In some instances, humanitarian law may permit actions that appear to derogate from human rights law, particularly concerning the use of force in conflict. The International Court of Justice (ICJ) has affirmed that human rights conventions continue to apply during armed conflicts, unless a state has validly derogated from its obligations. When situations fall under both bodies of law, international humanitarian law is generally considered *lex specialis* (the more specific law). ### Principles of international treaty law The interpretation of treaties, including human rights conventions, is guided by principles outlined in the Vienna Convention on the Law of Treaties (VCLT). These principles include interpreting treaty terms in their context, object, and purpose, and using supplementary means of interpretation like preparatory work. The ECtHR applies these rules, often emphasizing the object and purpose of human rights treaties, which is the protection of individual rights, sometimes leading to interpretations that go beyond the strict wording of the text. Denunciation of a treaty by a state is governed by the VCLT and specific treaty provisions, as seen in Russia's withdrawal from the Council of Europe and denunciation of the ECHR. ## United Nations Human Rights System The UN protects human rights through two main types of mechanisms: charter-based (e.g., the Human Rights Council) and treaty-based. ### Treaty-based mechanism of human rights protection This involves specific human rights treaties that establish committees to monitor state compliance. Key treaties include: * **International Covenant on Civil and Political Rights (ICCPR)** and **International Covenant on Economic, Social and Cultural Rights (ICESCR):** These covenants, adopted in 1966, were split due to ideological differences between East and West regarding the priority of rights. Committees monitor state reports, individual complaints, and issue general comments. * **Other UN Conventions:** Several specialized conventions exist, each with a corresponding monitoring committee, such as those on Racial Discrimination, the Elimination of Discrimination against Women (CEDAW), Against Torture (CAT), the Rights of the Child (CRC), Migrant Workers, Persons with Disabilities, and Enforced Disappearances. These mechanisms typically involve state reporting, individual complaints, and general comments, with some offering additional procedures like ex officio inquiries or preventive visits. #### Reform of the treaty body system Challenges within the treaty body system, including backlogs, late reporting by states, and varying working methods, have led to reform efforts. General Assembly resolutions have called for progress, aiming to strengthen the system's effectiveness. ### The Human Rights Council (Charter-based mechanism) Established in 2006 to replace the Commission on Human Rights, the Human Rights Council is a political body composed of 47 UN member states, elected for three-year terms. Its goals are to promote and protect human rights globally. It meets regularly and can convene special sessions. #### Procedures, mechanisms, and structures * **Universal Periodic Review (UPR):** A review of all UN member states' human rights records every four years, complementing the work of treaty bodies. * **Special Procedures:** Independent experts (Special Rapporteurs and Working Groups) appointed by the Council to investigate thematic or country-specific human rights issues. * **Advisory Committee:** A think-tank providing studies and advice to the Council. * **Confidential Complaint Procedure:** A mechanism for individuals to submit complaints about human rights violations, used by the Council to gather information and identify structural violations. ### Judicial consideration of human rights issues at a universal level While there is no global "world court of human rights," regional courts exist. The International Court of Justice (ICJ) considers international human rights law as part of international law but only addresses disputes between states, not individual complaints. ## Regional Systems of Human Rights Protection ### Europe The Council of Europe is a key organization promoting human rights, democracy, and the rule of law, distinct from the EU. Its foundational document is the European Convention on Human Rights (ECHR), which primarily guarantees civil and political rights. #### Council of Europe * **European Convention on Human Rights:** A "masterpiece" that has become a crucial human rights document. It was influenced by post-WWII efforts to rebuild Europe and limit state power, reflecting a conservative push for a ceiling on government actions. The ECHR primarily contains civil and political rights and establishes a control mechanism through the European Court of Human Rights (ECtHR) [1950](#page=1950). * **Shared responsibility:** The ECHR operates on the principle of subsidiarity, where national authorities and courts are the primary protectors of rights. Individuals can only approach the ECtHR after exhausting domestic remedies. * **The Strasbourg control mechanism:** * **Applications:** Primarily individual applications, but also inter-state applications. * **Admissibility:** Strict criteria apply, including the applicant being a victim, exhaustion of domestic remedies, and adherence to time limits and other requirements like "significant disadvantage." * **Procedure:** Applications are processed through various formations: a single judge, committees of three judges, chambers of seven judges, and the Grand Chamber for complex or sensitive cases. * **Interim measures:** The ECtHR can issue interim measures to preserve the situation of an applicant while a case is pending. * **Friendly settlement/Unilateral declaration:** Parties can reach a friendly settlement at any stage, or a state may make a unilateral declaration acknowledging a violation and offering redress. * **Decision or judgment:** The Court issues reasoned decisions on admissibility and judgments on the merits, which can include orders for compensation. * **Rehearing by the Grand Chamber:** A mechanism for internal appeal to the Grand Chamber under specific conditions. * **Execution of judgments:** States are obligated to comply with final judgments, supervised by the Committee of Ministers. #### European Union The EU's initial focus was not on human rights, but the Court of Justice of the European Union (CJEU) has incorporated them into EU law through general principles. The Charter of Fundamental Rights of the EU is a comprehensive catalogue of rights. The relationship between the EU and the ECHR is complex, particularly when EU law mandates actions that might conflict with the ECHR. The ECtHR's "Bosporus presumption" addresses this by presuming similar levels of protection unless specific circumstances indicate otherwise, aiming to avoid conflicts with the CJEU. The EU is obligated to accede to the ECHR. ### America The Inter-American system, within the Organization of American States, is a hybrid of the ECHR and UN systems, based on the American Declaration and Convention on Human Rights. It features the Inter-American Commission on Human Rights (promotional and complaint functions) and the Inter-American Court of Human Rights (for states recognizing its jurisdiction), which is known for its creativity in transitional justice. ### Africa The African system includes the African Charter on Human and Peoples' Rights, which emphasizes collective rights and a holistic approach. Monitoring is conducted by the African Commission on Human Rights, with an African Court on Human Rights that has limited jurisdiction and resources. Future reforms aim to establish specialized chambers within the African Court. ### Asia-Pacific Region Due to diverse legal traditions and political regimes, establishing a unified regional human rights system in Asia is challenging. Sub-regional systems exist, but individuals primarily rely on UN provisions. ### Muslim World The Organization of Islamic Conference (OIC) has produced declarations like the Cairo Declaration on Human Rights in Islam, which frames rights within the limits of Sharia law. The League of Arab States has the Arab Charter on Human Rights. ## Obligations Imposed on States by International HR Treaties States have a primary obligation to secure human rights to everyone within their jurisdiction. This obligation is *erga omnes* (towards all) and binds all branches of the state. It encompasses both negative obligations (to not interfere) and positive obligations (to act). ### Jurisdiction Jurisdiction is central to human rights enforcement. * **Territorial Jurisdiction:** The primary principle, where states are responsible for acts within their territory. This presumption can be rebutted if a state is prevented from exercising authority in parts of its territory. * **Extra-territorial Jurisdiction:** States can exercise jurisdiction outside their territory in specific scenarios, such as when their agents have authority and control over individuals or areas, or due to military action. This can be complex, especially concerning acts on board registered vessels or in regions under military occupation. The ECtHR's jurisprudence on extra-territorial jurisdiction is evolving, with a focus on the state's effective control. ### Nature of the state's obligations and international review of state action or inaction * **Negative Obligations (Obligation to Respect):** States must refrain from arbitrary interference with rights. While most rights are not absolute, any restrictions must meet the triple test: a legal basis, a legitimate aim, and necessity in a democratic society. This test ensures that limitations are not overly broad or discriminatory. * **Positive Obligations:** States have a duty to actively ensure the enjoyment of human rights. These obligations can be substantive (preventive measures) or procedural (investigations). They extend to protecting individuals from violations by third parties and can encompass ensuring effective legal frameworks, law enforcement, and preventive measures. The scope of positive obligations is often balanced against the state's available resources and the principle of separation of powers, leaving room for a "margin of appreciation." * **National Margin of Appreciation:** The ECtHR grants states a margin of appreciation, particularly in sensitive areas or when national authorities are better placed to assess matters. This doctrine allows for national diversity and discretion but is subject to European supervision, focusing on both the procedural fairness of decision-making and the substantive outcome. ### Obligations to redress violations of HR When human rights are violated, states have obligations to provide remedies and reparation to victims, as outlined by UN guidelines. This includes ending the breach, providing restitution, compensation, and reopening domestic procedures where necessary. ## Selected Human Rights ### Right to life (Article 2 ECHR + Article 6 CCPR) The right to life is considered the supreme value in human rights, fundamental to the enjoyment of all other rights. * **Scope of Application:** The definition of "life" and its commencement are complex, particularly concerning unborn life, where the ECtHR largely defers to national legal systems' margin of appreciation due to ethical and religious sensitivities. * **Negative Obligation:** Prohibits arbitrary interference with life. The use of lethal force by state agents is permissible only under strict conditions of necessity for specific aims: defense of persons, lawful arrest, or suppressing riots. The force used must be proportionate and absolutely necessary. States also have a duty to properly plan operations to protect third parties. * **Positive Obligation:** Includes preventive measures and effective investigations. States must have effective criminal law provisions and enforcement machinery to protect against risks posed by public authorities or private individuals. They must also investigate deaths in suspicious circumstances thoroughly and independently. * **Death Penalty:** While Article 2 ECHR does not explicitly prohibit the death penalty, subsequent protocols have moved towards its abolition in all circumstances. ### Prohibition of torture (Article 3 ECHR + Article 7 CCPR) Article 3 of the ECHR prohibits torture and cruel, inhuman, or degrading treatment or punishment. * **Scope of Application:** These terms are not strictly defined, leaving interpretation to the ECtHR. The threshold of severity depends on circumstances. * **Torture:** Considered an aggravated form of ill-treatment, requiring severe suffering, intentional infliction, and a specific purpose (e.g., obtaining information). * **Cruel, inhuman, or degrading treatment/punishment:** Involves premeditation, prolonged suffering, or acts that humiliate or debase an individual. * **Negative Obligation:** The prohibition is absolute and cannot be suspended, even in wartime, potentially constituting a *jus cogens* norm. State responsibility extends to omissions where states fail to prevent third parties from inflicting such treatment. * **Positive Obligation:** Requires states to have effective criminal law provisions and law enforcement machinery to prevent and punish torture and ill-treatment. This includes an obligation for effective investigation into alleged violations, ensuring procedural and substantive guarantees. ### Freedom of expression (Article 10 ECHR + Article 19 CCPR) Freedom of expression is fundamental to democracy, truth-seeking, and individual autonomy. * **General Characteristics:** It is not an unrestricted right; limitations are permissible under Article 10 if they meet the triple test (legality, legitimate aim, necessity). The press plays a vital role as a "watchdog" but also has duties and responsibilities [2](#page=2). * **Scope of Application:** Applies to opinions, information, and ideas, encompassing freedom of the press, disclosure of confidential information, and political speech. * **State Obligations:** * **Negative Obligations:** States must refrain from unjustified interferences. Restrictions require a legal basis, legitimate aim, and necessity. * **Positive Obligations:** States must protect individuals and professions (like journalists and whistleblowers) from threats and ensure access to government information and media pluralism. * **Applications:** * **Freedom of the Press:** Protected, but subject to restrictions concerning factual accuracy and reputational harm. Value statements are more protected than false statements of fact. Public figures generally have a lesser expectation of privacy than private individuals. * **Disclosure of Confidential Information:** Protection of journalistic sources is vital for a free press. Whistleblowers also have protections under specific circumstances. * **Political Speech:** Highly protected, especially on matters of public interest, to foster democratic debate. * **Academic Freedom:** Protected, but potentially limited to an academic's field of expertise. * **Special Authority Relationship:** Individuals in positions of authority (e.g., civil servants, judges) may have more restricted freedom of expression to maintain neutrality and public trust. * **Obscene or Blasphemous Expression:** Cultural variations exist, and states have a margin of appreciation. However, speech targeting individuals or groups rather than abstract beliefs can be restricted. * **Racist or Intolerant Speech:** Generally restricted, with Article 17 ECHR (prohibition of abuse of rights) used to prevent the use of freedoms to undermine other rights or democratic principles. ### Right to respect for private life, family life, home and correspondence (Article 8 ECHR + Article 17 CCPR) Article 8 is a broad provision protecting various aspects of personal autonomy and privacy. * **Right to Respect for Private Life:** * **Notion:** Difficult to define, encompassing the right to be left alone and personal autonomy. It covers physical and moral integrity, personal identity, processing of personal data, and personal development. It also protects interactions with others and the confidentiality of relationships. * **Applications:** Regulates sexual conduct, abortion, procreation techniques, surveillance, and the processing of personal data. It also protects against interferences by the press and actions by employers. * **Positive Aspects:** Include the obligation to have legal frameworks that sanction voyeurism, provide access to personal information, facilitate the right to become a parent, and protect against environmental hazards. * **Right to Respect for Family Life:** Crucial for personal development and social cohesion, this right is essential for child care, family reunification, and recognition of affiliation. * **Right to Respect for the Home:** Protects against unlawful occupation and guarantees privacy in one's dwelling, while also imposing positive obligations to protect against destruction or unlawful eviction. * **Right to Respect for Correspondence:** Protects the confidentiality of communications, including those of prisoners, and may impose positive obligations to facilitate communication. ### Right to Property (Article 1 Protocol No. 1 to the ECHR) The right to property, included in the First Protocol, reflects a balance between private ownership and public interest. * **Scope of Application:** Protects "possessions," which include material goods and legally recognized rights and interests that constitute assets, such as legitimate expectations of financial benefits. * **State Obligations:** * **Negative Obligations:** Prohibit unlawful deprivation of possessions (expropriation) or control over their use. Deprivation is lawful only if it meets strict conditions: legality, public interest, and proportionality, often including fair compensation. Restrictions on use (e.g., zoning laws, housing policies) are also subject to these tests. * **Positive Obligations:** States may have to protect property against criminal damage, provide judicial procedures for property disputes, and implement measures to protect against disasters or ensure compensation schemes. * **Taxes, Contributions, and Penalties:** While states can levy taxes and contributions, these must also adhere to legality, general interest, and proportionality, with extreme cases of disproportionate taxation being reviewable. ### Right to a fair trial (Article 6 ECHR and others) Article 6 of the ECHR guarantees the right to a fair trial in both civil and criminal matters. * **Scope of Application:** Covers disputes over civil rights and obligations or criminal charges. The "civil" or "criminal" nature of a matter is determined by domestic law and the nature and severity of the sanction, not just the label used domestically. * **Right to a Court:** Guarantees access to an independent and impartial tribunal, with the ability to have a dispute finally determined by a binding decision. * **Fair Hearing:** Encompasses principles like equality of arms, the right to present a defense, and fair examination of evidence. Restrictions on rights like anonymity of witnesses are permissible only under strict necessity and with balancing guarantees. * **Structural and Procedural Guarantees:** Requires tribunals to be established by law, independent, and impartial. Public hearings and judgments ensure transparency. * **Reasonable Time:** Proceedings must be concluded within a reasonable time, assessed based on the case's complexity, conduct of parties and authorities, and what is at stake for the applicant. ## Economic, Social and Cultural Rights (ESCR) ESCR, also known as "second-generation" rights, focus on the conditions necessary for human dignity and well-being, such as rights to health, education, and social security. ### ESCR as human rights While present in the UDHR, ESCR faced political challenges in becoming binding treaty law, leading to their separate codification in the ICCPR and ICESCR. The European Social Charter also protects these rights, though with a more flexible, policy-oriented approach and a monitoring committee rather than a court. The distinction between civil/political rights and ESCR is often overstated; they are interdependent and equally important for human dignity. ### Obligations of States with respect to ESCR States undertake to take steps, to the maximum of their available resources, towards the progressive realization of ESCR. This involves: * **Negative Obligations:** To "respect" ESCR, meaning refraining from retrogressive measures that would undermine existing levels of protection. * **Positive Obligations:** To "fulfill" ESCR by taking steps to facilitate, provide, and promote their realization, including establishing legal and policy frameworks and protecting against violations by third parties. * **Principle of Equality and Non-Discrimination:** States must ensure that ESCR are enjoyed without discrimination. These obligations are interpreted through various principles and guidelines, including general comments from monitoring committees and the "Maastricht Guidelines." ### Applications The realization of ESCR is monitored through state reports examined by committees and through complaint mechanisms, such as those under the European Social Charter and the Optional Protocol to the ICESCR. National case law also plays a role in interpreting and implementing these rights.

## Glossary | Term | Definition | | :------------------------------------------------------ | :------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | | Absolute rights | Rights that are without limits and can never be suspended, not even in times of war or emergencies. Examples include the right not to be tortured and the prohibition of slavery. | | Admissibility criteria | The requirements that an application must meet to be considered by the European Court of Human Rights, such as being directed against a State party, the applicant being a victim, exhaustion of domestic remedies, and a time limit. | | Arbitrary interference | Interference by public authorities that is not based on law, does not pursue a legitimate aim, or is not proportionate to the aim pursued. Such interference is a violation of fundamental rights. | | Charter-based mechanism | A mechanism for the protection of human rights established by the United Nations Charter, such as the Human Rights Council and its procedures. | | Civil and political rights | Also known as "first-generation" rights, these are individual freedoms and procedural rights that primarily impose negative obligations on the state to refrain from interfering with individual liberties. | | Collective rights (third generation) | Rights that belong to groups or peoples, such as the right to peace or the right to a healthy environment, often referred to as solidarity rights. | | Convention | Refers to the European Convention on Human Rights (ECHR) unless otherwise specified. | | Council of Europe | An international organization established after World War II focused on promoting human rights, democracy, and the rule of law, distinct from the European Union. | | Cruel, inhuman, or degrading treatment or punishment | Forms of ill-treatment that reach a certain level of severity, causing significant physical or mental suffering, humiliation, or debasement, and violating human dignity. | | Declaration of Human Rights | A statement of fundamental rights and freedoms, such as the Universal Declaration of Human Rights, which is generally considered non-binding but highly influential. | | Deprivation of possessions | The formal or de facto expropriation of property by the state, which is permissible under strict conditions including legality, public interest, and fair compensation. | | Due diligence | The level of judgment, care, forward-thinking, and activity that a person or entity would reasonably be expected to exercise under particular circumstances. In human rights, it often refers to the state's obligation to prevent violations. | | Economic, social, and cultural rights (ESCR) | Also known as "second-generation" rights, these are rights that typically require positive obligations from the state to facilitate or provide for the well-being of individuals, such as rights to housing, health, and education. | | Effective remedy | A remedy that is capable of preventing or remedying a violation of human rights, allowing for the substantive discussion of the complaint and granting appropriate relief. | | Equality of arms | A principle ensuring that each party in a legal proceeding has a reasonable opportunity to present its case under conditions that do not place it at a substantial disadvantage compared to its opponent. | | European Convention on Human Rights (ECHR) | An international treaty drafted by the Council of Europe concerning human rights and fundamental freedoms in Europe. | | European Court of Human Rights (ECtHR) | An international court established by the Council of Europe that hears applications alleging violations of the ECHR. | | European Union (EU) | A political and economic union of 27 member states located primarily in Europe, with its own legal system and institutions. | | Executive, legislative, and judicial branches | The three main branches of government responsible for creating laws (legislative), implementing laws (executive), and interpreting laws (judicial). Human rights obligations extend to all branches. | | Exhaustion of domestic remedies | The principle that an individual must first attempt to resolve their human rights grievance through the national legal system before bringing a case to an international or regional human rights body. | | Fair trial | A legal process that is conducted in accordance with established rules and principles, ensuring impartiality, public access, the right to present a defense, and the presumption of innocence. | | Fundamental rights | Rights considered to be of supreme importance, often enshrined in national constitutions or international treaties, and subject to stricter judicial scrutiny than ordinary rights. | | General Comment | Interpretive statements issued by UN human rights treaty bodies to clarify the scope and application of treaty provisions. | | Horizontal application | The application of human rights provisions between private individuals or entities, as opposed to the traditional vertical application between an individual and the state. | | Human dignity | The inherent worth and value of every human being, recognized as the fundamental basis of human rights. | | Human rights | Fundamental rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status. They are universal, inalienable, indivisible, and interdependent. | | Human Rights Council | A United Nations body responsible for promoting and protecting human rights worldwide, composed of 47 member states elected by the UN General Assembly. | | Ill-treatment | Any treatment that causes or is likely to cause suffering or humiliation to an individual, falling short of torture or inhuman treatment but still violating human dignity. | | Individual application | A complaint submitted by an individual alleging a violation of a human rights treaty by a state party, typically to a regional or international human rights monitoring body. | | Indivisible, interdependent, and interrelated rights | The principle that all human rights, whether civil, political, economic, social, or cultural, are of equal importance and are interconnected, meaning the denial of one right can negatively affect others. | | International Covenant on Civil and Political Rights (ICCPR) | A core United Nations human rights treaty that protects civil and political rights and establishes a monitoring committee. | | International Covenant on Economic, Social and Cultural Rights (ICESCR) | A core United Nations human rights treaty that protects economic, social, and cultural rights and establishes a monitoring committee. | | International humanitarian law | The body of law that governs the conduct of armed conflicts, aiming to protect civilians and limit the means and methods of warfare. | | International law | The body of rules and principles governing the relations between states and other international actors. | | Inter-state application | A complaint submitted by one state party alleging a violation of a human rights treaty by another state party. | | Jurisdiction | The authority and power of a state to exercise control and apply its laws within a defined territory or over specific persons or matters. | | Lawfulness of interference | The requirement that any interference with a protected right must have a legal basis in domestic law, be accessible, foreseeable, and protect against arbitrary actions. | | Legality | The principle that all actions by the state must have a basis in law, ensuring predictability and preventing arbitrary interference with rights. | | Legitimate aim | A justifiable purpose, such as national security, public order, or the protection of the rights and freedoms of others, for which restrictions on human rights may be permissible under specific conditions. | | Margin of appreciation | A doctrine developed by the European Court of Human Rights allowing national authorities a degree of discretion in implementing the ECHR, particularly in sensitive areas where there may be differing national approaches or public opinion. | | Monist system | A legal system where international law and domestic law are considered part of a single legal order, allowing international norms to have direct effect upon ratification. | | Negative obligations | Obligations imposed on the state to refrain from interfering with individuals' rights and freedoms, often associated with civil and political rights. | | Non-retroactivity of criminal law | The principle that criminal offenses and penalties cannot be applied to acts committed before the law came into force. | | Obligation to protect | The state's duty to take measures to prevent human rights violations by third parties. | | Obligation to respect | The state's duty to refrain from directly interfering with the rights and freedoms of individuals. | | Optional Protocol | An international agreement that supplements a core treaty, often establishing mechanisms for individual complaints or adding further rights. | | Ordinary right | A right that is not considered fundamental, typically subject to a balancing exercise rather than the stricter scrutiny applied to fundamental rights. | | Preamble | An introductory statement in a treaty or legal document that outlines the context, purpose, and underlying principles. | | Pilot-judgment procedure | A procedure used by the ECtHR to address systemic problems requiring legislative or general measures by a state, where the Court identifies a violation and requests the state to implement reforms, often by adjourning similar pending cases. | | Positive obligations | Obligations imposed on the state to take active steps to ensure the enjoyment of human rights, such as enacting legislation, providing services, or investigating violations. | | Presumption of innocence | The principle that an accused person is considered innocent until proven guilty in a court of law. | | Private law | The body of law that governs relationships between individuals or private entities, as opposed to public law which governs the relationship between the state and individuals. | | Progressive realization | The principle that states should take steps towards the full realization of economic, social, and cultural rights over time, using all available resources. | | Proportionality | The principle that any interference with a human right must be proportionate to the legitimate aim pursued, meaning it should be no more than what is necessary to achieve that aim. | | Public order | A legitimate aim for restricting rights, referring to the protection of the fundamental norms and values of society. | | Public scrutiny | The principle that judicial proceedings and their outcomes should be accessible to the public to ensure transparency and accountability. | | Quality of the law | Refers to whether a law is accessible, precise, and foreseeable, ensuring it provides adequate protection against arbitrary interference. | | Reasonable time | The principle that legal proceedings should be conducted without undue delay, ensuring prompt justice and preventing prejudice to the parties involved. | | Regulation | Rules or directives made and maintained by an authority. | | Res judicata | A matter that has been finally decided by a court or other binding tribunal and cannot be re-litigated between the same parties. | | Reservation | A unilateral statement made by a state when signing, ratifying, or acceding to a treaty, which purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that state. | | Right to a court | The fundamental right to access a judicial body to have one's civil rights and obligations or any criminal charge determined. | | Right to be let alone | An early conceptualization of privacy, emphasizing protection from unwanted intrusion and attention from others. | | Right to life | The supreme human right, recognized as an inalienable attribute of human beings, which prohibits arbitrary deprivation of life and imposes positive obligations to protect life. | | Rule of law | The principle that all persons, institutions, and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated, and which are consistent with human rights norms. | | Sanction | A penalty or other measure imposed on someone for breaking a law or rule. | | Self-executing | A treaty provision that, upon ratification, automatically becomes part of the domestic legal order and can be directly invoked by individuals before national courts without the need for further implementing legislation. | | Sharia | Islamic law, derived from the Quran and the Sunnah, that governs various aspects of life for Muslims. | | Solidarity rights | Another term for third-generation rights, emphasizing collective rights and shared responsibilities. | | Special rapporteur | An independent expert appointed by the UN Human Rights Council to report on specific human rights themes or country situations. | | State agents | Individuals acting on behalf of the state, such as police officers, military personnel, or government officials. | | State reports | Reports submitted by states parties to UN human rights treaty bodies detailing their compliance with treaty obligations. | | Subsidiarity | The principle that decisions should be taken at the lowest possible level of governance, with international or supranational bodies intervening only when necessary. | | Supplementary means of interpretation | Materials, such as preparatory works (travaux préparatoires), used to aid in the interpretation of a treaty when the general rules of interpretation are insufficient. | | Territorial jurisdiction | The authority of a state to exercise its laws and governmental powers within its own geographical territory. | | Torture | An aggravated form of ill-treatment involving severe suffering, intentionally inflicted for specific purposes such as obtaining information or punishment. | | Traditional values | Societal norms, beliefs, and practices passed down through generations, which can sometimes be invoked in discussions about human rights universality and cultural diversity. | | Transnational corporations (TNCs) | Companies that operate in multiple countries, often possessing significant economic power that can impact human rights. | | Treaty | A formal, legally binding written agreement between actors in international law, such as states. | | Tribual established by law | A body that has been lawfully constituted with a clear legal basis for its existence, competence, and composition, ensuring it is not an ad hoc tribunal created for a specific case. | | Triple test (or three-step test) | A framework used to assess the lawfulness of interferences with certain human rights, requiring a legal basis, a legitimate aim, and necessity in a democratic society (proportionality). | | Ultimum remedium | A last resort or final remedy, often used to describe the invocation of human dignity in cases where other legal grounds are insufficient. | | Universal Declaration of Human Rights (UDHR) | A foundational document of international human rights, adopted by the UN General Assembly in 1948, proclaiming a broad range of civil, political, economic, social, and cultural rights. | | Universal periodic review (UPR) | A process undertaken by the UN Human Rights Council to review the human rights records of all UN member states every four years. | | Unilateral coercive measures | Sanctions imposed by a state or group of states without the authorization of the UN Security Council, often aimed at compelling another state to change its policies. | | Unrestricted right | A right that has no limitations or exceptions. Human rights are generally not considered unrestricted. | | Vienna Convention on the Law of Treaties (VCLT) | An international agreement that codifies many of the rules of customary international law concerning treaties between states. | | Vertical application | The traditional understanding of human rights as a relationship between an individual and the state, where the state has obligations to respect and protect the individual's rights. | | Victim status | The requirement for an applicant to demonstrate that they have personally been affected by a violation of human rights to bring a case before an international or regional human rights body. | | Waiver of rights | The voluntary relinquishment of a right. While the exercise of rights can be waived, the core of fundamental rights cannot be completely renounced. | | "Western values" | A broad term often used in discussions about human rights universality, referring to values originating from Western philosophical and political traditions, which are sometimes contrasted with non-Western cultural perspectives. |