Law and human rightsSome remarks in reaction to judge Myjer

Jan-Peter Loof National Human Rights Institute of The Netherlands

ECHR: victim of it’s own success?

Enormous case load of the ECtHR

Political reasons for enlargement of Council of Europe in 1990’s and first years 21st century

Not enough attention paid to consequences of the enlargement for the functioning of ECtHR

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Recent criticism on ECtHR

Motivated by domestic political agenda, not so much by thorough analysis of case law

It is not because of the extensive way in which the ECtHR interprets the ECHR rights that the case load keeps rising

UK government highly critical of some ECHR judgments, but in mean time also taking measures to enhance protection of privacy it is not about human rights in general

Legal scholars: criticizing the ECtHR is ‘en vogue’; a niche for legal scholars to attract media attention

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Criticism on human rights framework not completely unfounded (I) Never ending development of HR treaties for

“special groups” Women, Children, Persons with disability, Migrant workers,

Elderly, etc. These groups may need special measures to be really able

to enjoy their human rights BUT: States grow weary of ever increasing reporting

procedures to UN treaty committees BUT: increasing number of ‘new’ rights (special measures)

will lead to more situations in which rights clash undermines the fundamental character of human rights

UN political human rights protection mechanisms: Human Rights Council / UPR not functioning very well in all respects

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Criticism on human rights framework not completely unfounded (II) ECtHR: ECHR is “living instrument” that has to be

interpreted in the light of “present day conditions” Applying this idea has radically changed the human

rights obligations of States in certain fieldsPhysical punishment of childrenChanging gender identity of transgenders in official

records

Is it the task/role of an international court to take such decisions?

Legislator has a better democratic legitimacy ECHR is aware of this: margin of appreciation for national

authorities (which factors influence wide/narrow?)

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ESC rights in times of economic crisis Int’l human rights law: progressive

implementation of these rights

Non-regression principle No salary cuts for civil servants? No lowering of social security benefits?No general answers possibleESC rights do offer some kind of bottom line

o f.i. new labour arrangements diminishing the right of (young) labourers to minimum wages, to a annual holiday with pay and giving no access to any form of social security violates European Social Charter

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