Law and human rights Some 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 21 st century  Not enough attention paid to consequences of the enlargement for the functioning of ECtHR 2

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 3

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 4

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 fields  Physical punishment of children  Changing 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?) 5

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 possible  ESC 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 6