二十世纪基本权利普遍概念的构建
法律入门：关键概念和定义 ● 国家：职能、结构和政治制度 ● 法律的不同部门 ● 法律渊源 ● 法律的主要形成传统 ● 法律关系的要素 ● 法律的适用 ● 法律的实施 ● 瑞士从起源到20世纪的发展 ● 瑞士的国内法律框架 ● 瑞士的国家结构、政治制度和中立 ● 19世纪末至20世纪中叶国际关系的演变 ● 世界组织 ● 欧洲组织及其与瑞士的关系 ● 基本权利的类别和世代 ● 基本权利的起源 ● 十八世纪末的权利宣言 ● 二十世纪基本权利普遍概念的构建
始于 1789 年的法国大革命是历史上的关键时刻，标志着人们对权利和自由的认识和实施方式发生了根本性的变化。这一时期的主要理念是法律应是普遍意志的体现，这一思想深受让-雅克-卢梭等启蒙哲学家的影响。本着这一精神，法律作为人民代表所表达的人民意志的产物，被视为自由的工具而非压迫的手段。这一思想打破了以往将法律视为君主和精英用来维护其权力的工具的观念。大革命还有助于在整个欧洲传播自由、平等和博爱的理想。这些理想影响了其他国家的许多立法和宪法改革，为现代人权和民主治理奠定了基础。法国大革命期间阐明的人民主权和人权原则对全世界法律和政治制度的发展产生了持久的影响。
二十世纪是一个关于法律在社会中的作用的深刻矛盾时期。在这一时期，全球在承认和保护人权方面取得了重大进展，但同时也出现了利用法律作为极权主义工具的情况。在世界许多地方，法律历来被视为正义和秩序的保障，但却被操纵来为专制政权服务，往往造成毁灭性的后果。
纳粹德国就是这种歪曲法律的一个特别突出的例子。在阿道夫-希特勒的政权下，1935 年《纽伦堡法》等法律被用来实施种族和反犹歧视并使之合法化。这些法律不仅剥夺了德国犹太人的公民权利，还为现代史上最大的悲剧之一--大屠杀铺平了道路。在苏联，在约瑟夫-斯大林的领导下，法律成为大规模政治镇压的工具。例如，在 20 世纪 30 年代的大清洗中，成千上万的人被指控犯有政治罪，往往是在捏造证据或逼供的基础上，然后被处决或送往劳改营。法律扩大了政治罪的定义，加强了国家对个人生活的控制，从而使这些大清洗合法化。在贝尼托-墨索里尼的法西斯意大利，法律被用来镇压所有政治反对派，宣传法西斯意识形态。例如，1925-1926 年的《法西斯法》标志着意大利向极权国家转变迈出了决定性的一步，它赋予墨索里尼广泛的权力，严重限制了公民自由。
这些历史事例说明，在专制政权手中，法律可以成为压迫而非保护的工具。因此，二十世纪的战争、革命和极权政权对法治理想提出了独特的挑战，清楚地表明法律本身既可以用来解放，也可以用来奴役。法律的这种双重性是这一时期的一个重要教训，极大地影响了现代人对人权、治理和防止滥用权力的必要性的理解。
和平条约 1919 - 1920
1918 年第一次世界大战结束后，欧洲元气大伤，疲惫不堪。协约国的战胜国在美国总统伍德罗-威尔逊的领导下，决心建立新的国际秩序，希望避免此类冲突再次发生。特别是威尔逊总统，他于 1918 年 1 月提出了著名的 "十四点"，作为确保持久和平的建议，在制定这一新的世界观方面发挥了决定性作用。威尔逊愿景的一个关键要素是创建国际联盟，这个国际组织旨在为和平解决冲突提供一个论坛，并鼓励国际合作。国联于 1920 年正式成立，是结束德国与协约国之间战争的《凡尔赛条约》的一部分。虽然国联的目标是防止未来的冲突，但它也存在一些缺陷，特别是缺乏美国的参与，以及无法对侵略采取果断行动。此外，《凡尔赛条约》本身，包括对德国的苛刻赔偿和对国家边界的重新界定，都造成了紧张局势和不满情绪，导致了第二次世界大战的爆发。因此，建立以健全的法律原则为基础的国际秩序的努力受到了国家利益分歧以及正义和公平原则应用不均衡的阻碍。然而，这一时期为今后几十年的国际思想和实践奠定了基础，凸显了国际合作和国际法的重要性。第一次世界大战后的经历也凸显了建立稳定公正的世界秩序的复杂性，这一挑战将继续影响整个二十世纪的世界政治。
第一次世界大战后的和平条约标志着在国际层面审议基本权利，特别是少数群体 权利的一个重要转折点。虽然这些条约的主要重点是重新界定国家边界和组织战争赔偿，但它们也引入了革命性的人权概念。这些条约的一个显著特点是承认种族、语言和宗教少数群体的权利。随着奥匈帝国和奥斯曼帝国等多民族帝国的瓦解以及国家边界的重新界定，保护少数民族成为一个至关重要的问题。和平条约试图保障这些权利，以防止少数民族在新国家或边界被重新划分的国家受到压迫。例如，《圣日耳曼昂莱条约》（1919 年）和《特里亚侬条约》（1920 年）都包含保护中欧和东欧少数群体的具体条款。这些条款规定，新国家或获得新领土的国家有义务在语言、教育、宗教和参与公共生活方面给予某些少数民族权利。尽管这些努力在当时是进步的，但其实施情况并不平衡，而且往往不够充分。条约中规定的保障并不总是得到遵守，在某些情况下甚至加剧了民族主义的紧张局势。然而，在和平条约中纳入此类条款为国际法承认少数民族权利开创了一个重要先例，为后来更全面的国际人权公约奠定了基础。
德国、奥匈帝国和奥斯曼帝国等中心帝国在第一次世界大战中战败，对欧洲和中东的政治版图产生了重大影响。在这种情况下，战胜国的领土重组鼓励了新民族国家的出现和独立浪潮，从而引发了少数群体基本权利的关键问题。多民族帝国包括各种族、语言和宗教群体，它们的崩溃留下了政治真空和一系列有关主权和民族特性的复杂问题。和平条约，特别是凡尔赛（1919 年）、圣日耳曼昂莱（1919 年）、特里亚侬（1920 年）和塞夫勒（1920 年）和平条约，根据伍德罗-威尔逊总统倡导的人民自决权原则重新划定了边界并建立了新的国家。
然而，这些新民族国家的建立往往导致少数群体被排斥或边缘化。例如，奥匈帝国的解体产生了几个新的民族国家，如捷克斯洛伐克、南斯拉夫和匈牙利，每个国家都面临着与少数民族权利有关的挑战。同样，奥斯曼帝国的解体导致中东新国家的形成，加剧了族群间的紧张关系。在此背景下，和平条约试图建立对少数群体的保护，但这些措施往往不够充分且适用性差。因此，少数群体问题已成为一个老大难问题，导致多个地区出现紧张局势和冲突。这些挑战凸显了在一个日益分裂为民族国家的世界中管理少数群体权利的复杂性，也为未来在国际层面保护人权的努力提供了重要的借鉴。
一战后欧洲的重建以建立新的民族国家为标志，是一项复杂而又充满风险的工作。边界的重新界定和多民族帝国的解体导致出现了由异质人口组成的国家，这些人口在语言、文化、宗教和民族血统方面存在着巨大差异。这种情况给这些新国家的稳定和统一带来了巨大的挑战和不确定性。伍德罗-威尔逊总统和其他世界领导人倡导的人民自决权原则在理论上是一个崇高的理想。然而，在实践中，这一原则的应用往往是复杂和有缺陷的。在许多情况下，新国家的边界与种族或文化划分并不明确。例如，捷克斯洛伐克的建立使捷克人和斯洛伐克人以及日耳曼人、匈牙利人、鲁塞尼亚人和其他少数民族聚集在一起。南斯拉夫部分由奥匈帝国的残余组成，汇集了塞尔维亚人、克罗地亚人、斯洛文尼亚人、波斯尼亚人、黑山人和马其顿人，每个人都有自己的文化和历史身份。这种异质性导致内部关系紧张，因为少数群体常常感到被边缘化或受到占主导地位的多数群体的压迫。和平条约为少数民族提供的保护并不充分，而且并非总是得到有效执行。此外，其中几个国家日益高涨的民族主义加剧了分裂，有时甚至导致歧视或同化政策。
德国的情况也与此相关。凡尔赛条约》签订后，德国失去了大量领土，并需要支付巨额赔款。这种情况加剧了怨恨和屈辱感，为政治极端主义提供了沃土，为阿道夫-希特勒和纳粹政权的崛起铺平了道路。一战后欧洲的重新组合是重绘欧洲大陆政治版图的一次大胆尝试。然而，它也揭示了在这样一个多元化地区建立民族国家所固有的局限性和风险。由此产生的紧张局势和冲突是二十世纪欧洲历史的决定性因素，最终导致了更多的悲剧，尤其是第二次世界大战。
为了防止第一次世界大战后新成立的国家内部出现冲突和紧张局势，和平条约的起草者建立了一套保护制度，旨在防止对少数群体滥用权力。这一制度承认，在欧洲领土和政治重新组合的复杂背景下，有必要保护少数群体的权利。和平条约中的少数群体条款，如《凡尔赛条约》和类似协定中的条款，旨在保障少数群体的基本权利。这些权利包括免受歧视的保护，保留其语言、文化和宗教的权利，以及接受教育和参与政治的机会。这样做的目的是建立法律保障，使少数民族不会受到多数民族的压迫或强迫同化。
从理论上讲，这一保护体系代表了国际法的一大进步。这是国际条约首次如此关注少数群体的权利。然而，在实践中，这些措施的适用性和有效性证明是有问题的。由于缺乏有效的执行机制，一些签署国又缺乏足够的政治意愿，这些保护措施往往形同虚设。此外，本应监督和执行这些承诺的国际联盟也常常发现自己无力解决侵犯少数群体权利的问题。在某些情况下，各国规避或公然无视其义务，加剧了种族和民族紧张局势。尽管存在这些缺陷，在战后和平条约中保护少数群体权利的努力是国际人权法发展的重要一步。它为今后更有力的举措奠定了基础，并强调了在复杂的国际背景下保护弱势群体权利的极端重要性。
凡尔赛条约》第 86 和 93 条在国际少数群体权利法的历史上发挥了关键作用。它们说明了同盟国为将保护少数群体纳入第一次世界大战后的和平条约所做的努力。
第 86 条专门针对捷克斯洛伐克，一个由前奥匈帝国领土新成立的国家。该条款规定，捷克斯洛伐克必须接受盟国认为保护少数民族所必需的条款。鉴于捷克斯洛伐克的种族和文化多样性，包括捷克人、斯洛伐克人、德国人、匈牙利人和其他少数群体，该条款尤为重要。另一方面，第 93 条涉及波兰。与捷克斯洛伐克的情况一样，波兰必须承诺遵守保护少数群体的规定。在波兰，乌克兰人、白俄罗斯人、犹太人和德国人等不同民族的共存给权利和族群间关系带来了重大挑战，因此，这一承诺至关重要。
这些条款是建立保护少数民族权利国际标准的广泛努力的一部分。1919 年在凡尔赛为波兰签署的条约和在圣日耳曼为捷克斯洛伐克签署的条约是将这些承诺正式化的具体尝试。这些条约旨在确保新的民族国家尊重所有公民的权利，无论其种族或宗教背景如何。尽管这些措施标志着在承认少数群体权利方面向前迈出了重要一步，但其有效实施一直是一个挑战。缺乏有效的监督和执行机制往往限制了其影响。然而，这些条款开创了将少数群体权利纳入国际法的重要先例，为这一领域的进一步发展奠定了基础。
凡尔赛条约》第 86 条和第 93 条中关于保护少数群体的规定通过 1919 年在凡尔赛和圣日耳曼昂莱签署的具体条约得以实施。这些条约旨在正式承认波兰和捷克斯洛伐克等新民族国家，同时保证保护这些国家内部的少数民族权利。1919 年 6 月 26 日在凡尔赛签署的关于波兰的条约正式宣告了波兰在被俄罗斯、普鲁士和奥匈帝国瓜分和占领一个多世纪后的重生。该条约不仅承认了波兰的独立，还规定了保护少数民族权利的义务。鉴于波兰的民族和语言多样性，这些规定对于确保不同群体之间的和平与平等共处至关重要。
同样，1919 年在圣日耳曼昂莱与捷克斯洛伐克（由前奥匈帝国领土新成立的国家）签署的条约也包含保护少数民族的具体条款。捷克斯洛伐克的民族构成复杂，不仅包括捷克人和斯洛伐克人，还包括苏台德日耳曼人、匈牙利人、鲁塞尼亚人和其他少数民族，因此这些条款至关重要。这些条约标志着保护少数民族首次得到正式承认并被纳入国际协定，是国际法的一大进步。然而，由于缺乏有效的监督和执行机制，以及相关国家内部的政治和民族主义紧张局势，这些条约在实践中的效力参差不齐。尽管存在这些局限性，但这些条约为国际保护少数群体权利的进一步发展奠定了基础。
第一次世界大战后制定的关于波兰和捷克斯洛伐克的条约中有关保护少数群体的条款，标志着国际人权保护演变的一个基本阶段。这些条约代表了在新的民族国家中对少数群体实施法律保护的第一次具体尝试，尽管其实施并不完美，但它们为人权领域的未来发展铺平了道路。这些规定反映了人们日益认识到保护所有人基本权利的重要性，无论其种族、语言或宗教背景如何。他们认识到，欧洲的长期和平与稳定不仅取决于解决领土争端和战争赔偿，还取决于确保新国家公平对待所有人民。
尽管这些努力的重点是少数群体的权利，但它们为更广泛的人权概念的发展奠定了重要基础。例如，这些条约提出了尊重人权是国际关注的问题，而不仅仅是国家内部事务的理念。这为后来的国际公约和宣言铺平了道路，如 1948 年的《世界人权宣言》，扩大和加强了对全世界人权的保护。因此，第一次世界大战后条约中有关少数群体的条款虽然范围具体，适用性有限，但却是朝着建立保护人权的国际法律框架迈出的重要一步。
国际联盟为保护少数群体建立的保障体系是更广泛的集体安全框架的一部分。这种做法在当时是革命性的，是通过国际合作和相互尊重法律规范来维护全球和平与稳定的雄心勃勃的尝试。第一次世界大战后成立的国际联盟的主要目标是通过对话和外交防止新的国际冲突。国联强调集体安全，其理念是一个国家的和平是所有成员国的关切，对和平的威胁应集体应对。
保护少数群体的权利是这一框架不可分割的一部分。其基本信念是，对少数群体的歧视和虐待可能会导致内部紧张局势，进而引发国际冲突。因此，通过确保各国尊重包括少数群体在内的所有人民的权利，国际联盟寻求促进国内稳定，进而促进国际和平。然而，在实践中，国际联盟的集体安全体系遇到了许多障碍。最大的挑战之一是缺乏强制执行机制，一些关键国家，尤其是美国，也没有参与其中。此外，民族主义和极权主义政权在两次大战之间崛起，破坏了国联的努力，最终导致其无法阻止第二次世界大战。尽管有这些失败，国际联盟促进集体安全和保护少数群体的尝试为后来的国际人权和集体安全体系奠定了基础，如联合国和《世界人权宣言》。这些举措极大地受益于从国际联盟所面临的限制和挑战中汲取的经验教训。
第一次世界大战后产生的条约最重要的一个方面是，它们代表了在国际层面解决人权和保护少数群体问题的首次尝试。这种做法在当时是一种创新，标志着国际社会处理这些关键问题的方式上的一个转折点。凡尔赛条约》、《圣日耳曼-昂莱条约》和其他类似协定中有关保护少数群体的规定是国际法领域的开创性举措。它们提出了保护特定群体，特别是种族、语言和宗教少数群体的权利不仅是国家内部的正义问题，而且也是国际社会正当关注的问题。
这些条约认识到，冲突后的和平与稳定不能仅仅通过领土调整或经济协议来实现。它们还要求关注所有公民的权利和福利，特别是那些在新的民族国家中最有可能被边缘化或受压迫的人。尽管这些条款的实施情况参差不齐，而且往往不够充分，但将其纳入条约开创了一个重要先例。它为后来国际法的发展铺平了道路，包括国际联盟的成立，以及后来联合国和《世界人权宣言》的诞生。这些早期步骤对于形成当代国际法中的人权和保护少数群体的方法至关重要。
20 世纪的极权主义
To fully understand the major international texts on human rights, such as the 1948 Universal Declaration of Human Rights and the 1950 European Convention on Human Rights, it is essential to consider the historical context in which they were drawn up, in particular the impact of totalitarian regimes in Europe and the tragedy of the Second World War.
The rise of totalitarianism in Europe between the wars, with regimes such as Nazism in Germany under Adolf Hitler, Fascism in Italy under Benito Mussolini, and Stalinism in the Soviet Union, represented a dark period in history. These regimes not only flouted fundamental human rights but also led to conflict and atrocities on an unprecedented scale, culminating in the Second World War. The brutality and horrors of this war, including the Holocaust, raised global awareness of the need to protect the fundamental rights of all individuals. The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, was a direct response to the crimes against humanity perpetrated during the Second World War. It aimed to establish a set of inalienable and universal rights guaranteeing dignity, freedom and equality for all human beings.
Similarly, the European Convention on Human Rights, which came into force in 1953, was a major initiative to promote and protect human rights in Europe. The creation of the European Court of Human Rights has provided an essential mechanism for ensuring respect for these rights at continental level. These documents and institutions are not only responses to the tragedies of the past; they also represent a collective recognition of the need for a solid legal and moral framework to prevent the recurrence of such events. In this way, the legacy of totalitarianism and the Second World War continues to profoundly influence our understanding and approach to human rights worldwide.
The totalitarian regimes of the twentieth century, in particular Nazism in Germany, often promoted ideologies based on racial superiority, reducing the individual to a mere element within a defined "race". From this perspective, the value and existence of the individual is entirely subordinated to the interests and ideology of the state. One of the most dangerous aspects of totalitarianism is the notion that the state has absolute power over individuals, including the right to life and death. This has been manifest in the way totalitarian regimes have pursued policies of terror, repression and genocide. In this framework, the individual has no autonomy or intrinsic rights, but exists solely to serve the objectives of the state.
This annihilation of individualism and the imposition of absolute obedience to the state have had tragic consequences. Under the Nazi regime, for example, this ideology led to the Holocaust, the systematic extermination of millions of Jews, as well as Roma, disabled people, political dissidents and other groups considered undesirable or inferior according to Nazi racist criteria. Totalitarianism, in all its forms, represents an extreme denial of the fundamental principles of human rights, in which the freedom, equality and dignity of the individual are completely flouted. Awareness of these horrors was a key driver in the development of international human rights law after the Second World War, in an effort to ensure that such atrocities never happened again.
The establishment of totalitarian regimes in Europe in the first half of the twentieth century is a significant chapter in contemporary history, not least because of the way in which these dictators came to power. This process, which took place in circumstances of political crisis or vulnerability, offers a crucial insight into how democratic structures can be manipulated or hijacked.
In Italy, the rise of Benito Mussolini is a striking example. After the Fascist March on Rome in October 1922, a show of force that threatened to degenerate into violent conflict, King Victor Emmanuel III decided to appoint Mussolini as head of government. This appointment, although made within the legal framework of the time, marked the beginning of the transformation of Italy into a Fascist state. Mussolini quickly consolidated his power, with the support of the Italian Parliament, which passed the laws necessary to legitimise his authority and establish a dictatorial regime. In Germany, Adolf Hitler's rise to power in 1933 was also achieved by legal means. Appointed Chancellor by President Paul von Hindenburg after a significant electoral success, Hitler was quick to use this position to erode the democracy of the Weimar Republic. The burning of the Reichstag in February 1933 provided Hitler with the ideal pretext to increase his powers and suppress the opposition, ultimately leading to the establishment of a Nazi dictatorship. In France, the case of Marshal Philippe Pétain illustrates another facet of this dynamic. Faced with the German advance in 1940 and the imminent defeat of France, Parliament, in a climate of national disarray, granted Pétain exceptional powers on 10 July 1940. These powers enabled him to set up the Vichy regime, an authoritarian state that collaborated with Nazi Germany. These historical examples highlight the fragility of democracies in the face of crises and internal or external threats. They show how, even in apparently stable societies, rights and freedoms can be rapidly eroded, and how authoritarian figures can exploit crisis situations to establish oppressive regimes. These events have served as fundamental lessons for future generations about the need to protect democracy and vigorously uphold the principles of human rights.
Once in power, totalitarian rulers in Europe used parliamentary institutions to gain extensive powers, thereby consolidating their dictatorial authority. This process is particularly evident in the case of Benito Mussolini in Italy, who succeeded in gradually transforming the political system to concentrate considerable power in his own hands. After being appointed President of the Council by King Victor Emmanuel III in 1922, Mussolini began to extend his influence over the Italian government. The decisive turning point came on 31 January 1926, when the Italian Parliament granted Mussolini extensive legislative powers. This decision marked a major step in the transformation of Italy into a Fascist state: from then on, no law could be introduced into Parliament without Mussolini's prior consent. In addition, Parliament authorised Mussolini to legislate by decree-law, allowing him to bypass traditional legislative processes. This concentration of power reduced the Italian Parliament to a mere recording chamber, stripped of its independent legislative role. As a result, Mussolini was able to strengthen his control over the Italian state and society, establishing a totalitarian regime characterised by a single party, a censored press and the suppression of all political opposition. This model, where a dictator uses parliament to increase his power, was repeated across various totalitarian regimes in Europe during this period. It illustrates how democratic institutions can be manipulated and transformed to serve authoritarian ends, underlining the crucial importance of safeguarding the principles of separation of powers and democratic control to prevent the erosion of fundamental rights and freedoms.
The totalitarian regimes established in Europe during the twentieth century are characterised by their absolute control over all structures of society, including information and the press, as well as by the domination of a single political party and the presence of an omnipresent police and repressive apparatus. These elements have become defining characteristics of totalitarian regimes, illustrating their total control over the lives of citizens. Control of information and the press was an essential tool for these regimes. By monopolising the media, dictators could propagate their ideology, censor any opposition and shape public opinion. For example, under the Nazi regime in Germany, Joseph Goebbels, the Minister of Propaganda, established rigorous control of the media, using radio, the press and the cinema to spread Nazi propaganda. Similarly, in Fascist Italy, Mussolini exercised tight control over the press, suppressing dissenting voices and promoting Fascist ideology.
The existence of a single party is another characteristic of totalitarian regimes. In these systems, a single political party dominated political life, often under the direction of a charismatic leader. This single party was not only an instrument of governance but also a means of social control, overseeing all aspects of life, from education to culture and the economy. These regimes also relied on a police and repressive apparatus to maintain their power. The Gestapo in Nazi Germany, the OVRA in Fascist Italy and the NKVD in the Stalinist Soviet Union are examples of secret organisations or state police used to monitor, intimidate and eliminate political opponents. These organisations were feared for their brutality and effectiveness in suppressing any form of dissent or resistance. Overall, these totalitarian regimes demonstrated an ability to control and manipulate almost every aspect of society, establishing systems where individual freedom was largely crushed in favour of the state. Their legacy is a sombre reminder of the dangers that concentration of power, censorship and repression pose to societies and to fundamental human rights.
The laws enacted by totalitarian regimes in Europe revealed their oppressive and, in some cases, openly racist nature. These laws gradually gutted the existing liberal constitutions, which were the result of two centuries of democratic and liberal development. In Germany, the Weimar Constitution of 1919, which had established a liberal democracy after the First World War, was systematically dismantled by the Nazi regime. The Enabling Act of 1933 is a striking example: this law gave Hitler and his government the power to legislate without the intervention of the Reichstag, paving the way for a total dictatorship. In addition, the Nuremberg Laws of 1935 institutionalised racial discrimination, particularly against Jews, marking a turning point towards the regime's genocidal policy. In Italy, the 1848 constitution, known as "Il Statuto Albertino", had initially established a liberal constitutional framework. However, with the rise of Mussolini and the consolidation of the Fascist regime, this constitution was gradually eroded. Laws such as the Fascist Laws of 1925-1926 reinforced Mussolini's power, restricted civil liberties and transformed the political system into a one-party state. In France, the Vichy regime, under the leadership of Philippe Pétain, marked a radical break with the principles of the Third Republic, established by the Constitution of 1875. The laws enacted under Vichy, notably the Statute of the Jews and the full powers granted to Pétain, not only violated the republican principles of liberty, equality and fraternity, but also contributed to collaboration with Nazi Germany and the persecution of Jews and other groups. These examples illustrate how totalitarian regimes not only repressed individual and political freedoms, but also set out to destroy the constitutional and legal foundations on which liberal societies were built. These actions had profound and lasting consequences, not only for the countries concerned, but also for global understanding of the importance of protecting human rights and preserving democratic institutions.
Constitutional recognition of fundamental rights from the end of the Second World War and its internationalisation
In the aftermath of the Second World War, Europe and the whole world were confronted with a horrifying realisation of the atrocities committed by totalitarian regimes. The discovery of concentration camps, genocides and numerous other massive human rights violations had a profound effect on public opinion in Europe. This awareness played a decisive role in mobilising people to promote and adopt a universal conception of human rights.
This period saw a radical change in international thinking on human rights. Previously, the rights of the individual had often been regarded as falling within the domestic jurisdiction of states, but the horrors of war clearly demonstrated the need for an international and universal standard to protect the fundamental rights of every individual. In response to these events, international initiatives were undertaken to establish a legal and moral framework to prevent the recurrence of such atrocities. The creation of the United Nations in 1945 was central to these efforts. One of the first and most important achievements of the UN was the adoption of the Universal Declaration of Human Rights in 1948. This document, although not legally binding, established for the first time a list of inalienable fundamental rights, applicable to all peoples and all nations. It represented a common ideal for all members of the human community.
In Europe, the desire to guarantee the protection of human rights also led to the creation of the European Convention on Human Rights in 1950, an international treaty designed to protect human rights and fundamental freedoms in Europe. The Convention also established the European Court of Human Rights, providing a mechanism for legal redress for individuals who consider themselves to be victims of human rights violations by a member state. In this way, the reaction to the monstrosities of war was a powerful driving force for the development and affirmation of a universal conception of human rights, marking a turning point in global governance and the protection of individual rights. These developments have underlined the crucial importance of international solidarity and shared responsibility for protecting the dignity and rights of every individual.
The 1948 Universal Declaration of Human Rights
The European concept of human rights, as it developed after the Second World War, marks the culmination of a long Western tradition of defending human rights. This tradition, which began with various declarations of rights throughout history, took on a crucial new dimension after the horrors of totalitarianism. It was no longer just a matter of proclaiming human rights, but also of guaranteeing their respect and application. This need for guarantees led to the creation of judicial mechanisms capable of enforcing these rights. In this context, the European Convention on Human Rights, adopted in 1950, and the creation of the European Court of Human Rights were major milestones. The Convention not only reaffirmed fundamental rights but also established a legal system for their protection. Individuals could now lodge complaints against a Member State with the European Court of Human Rights for alleged violations of their rights enshrined in the Convention.
This legal framework made human rights justiciable, i.e. capable of being invoked and defended before a court. The possibility of having recourse to a supranational court to deal with human rights violations represents significant progress. It has not only strengthened the protection of these rights at individual level, but has also contributed to the establishment of consistent legal standards and practices across Europe. The establishment of these judicial mechanisms is a direct response to the shortcomings observed during the period of totalitarian regimes, when fundamental rights were flouted without any possibility of appeal. The ability to appeal to an international court to challenge violations of human rights therefore represents a fundamental change in the way these rights are perceived and protected, embodying the idea that they are not just ideal principles, but applicable and enforceable standards.
In response to the tragedies of totalitarianism and the Second World War, many European countries revised or drafted their constitutions to include specific jurisdictional mechanisms to guarantee fundamental rights. This development marks a crucial shift from the mere proclamation of rights to their effective guarantee, a process that first developed at national level before extending to supranational systems such as the European Convention on Human Rights.
As part of these constitutional reforms, several European states have introduced constitutional courts or similar judicial mechanisms with the explicit power to review the conformity of laws with the fundamental rights set out in the constitution. For example, Germany created the Federal Constitutional Court (Bundesverfassungsgericht) in 1951, a key institution for the protection of constitutional rights. In Italy, the Corte Costituzionale, established in 1948, performs a similar function. These judicial institutions play an essential role in reviewing the constitutionality of laws and government acts, ensuring that fundamental rights are not just recognised in theory, but actively protected and implemented. They provide citizens with a legal remedy in the event that their rights are violated by the State, thereby strengthening respect for the rule of law and the protection of individual freedoms.
Beyond the national framework, the creation of the European Court of Human Rights offers an additional level of legal protection. Citizens of Council of Europe member states can bring their cases before this Court after exhausting all domestic remedies, thus ensuring transnational monitoring and application of human rights in Europe. This move towards mechanisms for guaranteeing rights at national and supranational level represents a concrete response to the challenges posed by totalitarian regimes and a major step forward in the protection of human rights. It underlines the importance of robust and independent legal systems for safeguarding fundamental rights and preserving democracy.
The Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, represents a fundamental step in the promotion of a universal conception of fundamental rights. This document, conceived in the wake of the horrors of the Second World War, aims to establish a framework of human rights common to all peoples and all nations, transcending borders and cultural differences. The Universal Declaration of Human Rights was revolutionary in several respects. It set out a series of fundamental rights and freedoms that should be protected and respected worldwide, affirming principles such as equality, dignity, freedom, justice and peace. For the first time, a document sought to define human rights in a global way, addressing humanity as a whole. However, it is important to note that the Universal Declaration of Human Rights, as a resolution of the United Nations General Assembly, is not legally binding. It establishes ideal standards and principles but does not in itself have the mechanisms for application or sanction. It does not create judicial bodies to enforce these rights, and its application depends on the will and commitment of the Member States.
In Europe, the response to this need for legal guarantee mechanisms took the form of the 1950 European Convention on Human Rights, which established the European Court of Human Rights. This court provides a legal remedy for individuals who consider themselves to be victims of violations of the rights set out in the Convention by one of the member states. While the Universal Declaration of Human Rights lays the ideological and moral foundations for the protection of human rights worldwide, other instruments and institutions, such as the European Convention on Human Rights, are needed to guarantee and apply these rights in a concrete and legally binding manner.
Unlike the Universal Declaration of Human Rights, the European Convention on Human Rights establishes a regional mechanism for guaranteeing and penalising violations of fundamental rights. Adopted in 1950 and brought into force in 1953, the European Convention on Human Rights represents a milestone in the legal protection of human rights in Europe. The Convention, which includes many Council of Europe member states, sets out a series of fundamental rights and freedoms. It goes beyond simply proclaiming these rights by establishing a binding legal system to guarantee them. The key mechanism in this system is the European Court of Human Rights, based in Strasbourg.
The European Court of Human Rights provides a judicial remedy for individuals who believe that their rights, as set out in the Convention, have been violated by one of the member states. Individuals may bring their case to the Court after exhausting all domestic remedies in their country. If the Court finds a violation, it can order the State concerned to take measures to remedy the situation, including, in some cases, the payment of damages to the victim. This guarantee mechanism is of vital importance because it ensures that the human rights commitments made by States are not merely theoretical or declaratory, but are implemented and respected. The European Convention on Human Rights and its Court therefore represent an effective regional model for the legal protection of human rights, having a significant impact on human rights standards and their application in Europe.
The European Convention on Human Rights, although a regional instrument, has played a key role in the development of an international concept of fundamental rights. Adopted in 1950 and brought into force in 1953, it marked a milestone in the history of human rights, establishing not only a catalogue of rights and freedoms to be protected but also a binding legal mechanism for their implementation. It is important to note that, chronologically, the European Convention on Human Rights came after the 1948 Universal Declaration of Human Rights, which was the first document to declare fundamental rights on a global scale. The Universal Declaration, adopted by the United Nations General Assembly, laid the conceptual and moral foundations for human rights on an international scale, although it was not binding.
The European Convention on Human Rights built on this foundation by creating a binding legal framework for the member states of the Council of Europe. It was a major step forward in the protection of human rights, as it established a court - the European Court of Human Rights - where individuals can bring complaints against states for violations of the rights set out in the Convention. Although the Convention is regional in scope, its impact on the international conception of human rights has been profound. It has served as a model for other regional human rights treaties, such as the American Convention on Human Rights and the African Charter on Human and Peoples' Rights. In addition, the Convention has helped to reinforce the idea that human rights must be protected by binding legal mechanisms, not only at national level, but also through regional and international legal systems.
It is important to clarify the relationship between the 1948 Universal Declaration of Human Rights and the 1950 European Convention on Human Rights as regards the mechanism for guaranteeing fundamental rights. The Universal Declaration of Human Rights, adopted in 1948, established for the first time a universal list of fundamental rights and freedoms. However, the Declaration, as a document of the United Nations General Assembly, was not legally binding. Instead, it served as a declaration of common ideals, establishing a moral and ethical framework for human rights, but without providing any mechanism for legal guarantees or remedies in the event of violations.
The European Convention on Human Rights, signed in 1950, was inspired by the principles set out in the Universal Declaration, but went further by establishing a binding legal framework for the member states of the Council of Europe. The Convention created a specific guarantee mechanism - the European Court of Human Rights - where individuals can lodge complaints against member states for violations of the rights set out in the Convention. This mechanism offers a legal remedy to victims of human rights violations, which was a major advance on the Universal Declaration. In short, although the European Convention on Human Rights was influenced by the principles and ideals of the 1948 Universal Declaration, the guarantee mechanism - a key innovation of the Convention - was born with it in 1950 and was not present in the 1948 Declaration. The Convention transformed these ideals into legally binding obligations for Member States, marking a milestone in the development of international human rights law.
The 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms
It is essential to understand that, although the European Convention on Human Rights and the Universal Declaration of Human Rights are closely linked in their objective of promoting fundamental rights, the specific guarantee mechanism established by the Convention does not have its direct origins in the 1948 Declaration. However, it can be said that the Universal Declaration laid the conceptual and moral foundations that influenced the creation of the European Convention and its guarantee mechanism. The Universal Declaration of Human Rights, adopted in 1948, was a direct response to the horrors of the Second World War and marked a historic turning point in the international recognition of human rights. It proclaimed a series of fundamental rights and freedoms that were to be respected universally, but without establishing a binding legal framework to guarantee them.
The European Convention on Human Rights, adopted in 1950, was influenced by the principles set out in the Universal Declaration, but broke new ground by introducing a binding legal mechanism for the member states of the Council of Europe. The creation of the European Court of Human Rights provided a legal remedy for individuals who suffered violations of the rights set out in the Convention. Thus, although the European Convention on Human Rights was influenced by the spirit and principles of the Universal Declaration, its specific guarantee mechanism - the possibility for individuals to bring complaints before an international court - is an innovation of its own. It represents a significant evolution in the protection of human rights, marking the transition from an ideal proclamation of rights to their concrete implementation and application at regional level. This evolution is the result of a historical process that began well before the end of the 19th century, but which found its concrete culmination after the Second World War with the establishment of regional legal systems for the protection of human rights.
The European Convention on Human Rights represents a regional manifestation of the importance attached to the protection of fundamental rights, similar to that observed in the national constitutions of European countries. However, the Convention goes beyond simply proclaiming these rights by establishing a specific jurisdictional system to guarantee them, namely the European Court of Human Rights. This judicial institution is a crucial element of the Convention, as it provides a redress mechanism for individuals or entities who believe that their rights, as set out in the Convention, have been violated by a Member State. The Court has the power to rule on such cases and, if a violation is found, to sanction the State responsible. This ability to sanction violations represents a major advance on previous human rights declarations and conventions, which did not have such strong enforcement mechanisms.
The fact that the European Convention on Human Rights includes such a jurisdictional mechanism is no coincidence, but rather the reflection of an evolution in legal and political thinking at European level, influenced by national experiences. At national level, many European countries revised their constitutions or passed new laws after the Second World War to strengthen the protection of fundamental rights, often by establishing constitutional courts or other judicial mechanisms to monitor the conformity of laws and government actions with constitutional rights. This trend towards legally guaranteeing fundamental rights at national level was a prelude to the establishment of similar mechanisms at regional level, as is the case with the European Convention on Human Rights. Thus, the Convention and its Court represent not only an extension of the principles of human rights protection beyond national borders, but also a concretisation of the idea that such rights require effective legal protections and redress mechanisms to be truly guaranteed.
By guaranteeing human rights, the European Convention on Human Rights marks the culmination of a process that has its roots in the development of constitutional law at national level in Europe. This process was characterised by a gradual move towards the recognition and legal protection of fundamental rights in the constitutions of European states.
During the nineteenth and twentieth centuries, many European countries adopted or revised their constitutions to explicitly include fundamental rights and freedoms. These rights were initially considered primarily in a national context, with the idea that constitutions served to limit the power of the state and protect citizens against abuses of that power. Constitutional rights often included civil and political liberties such as freedom of expression, freedom of religion, the right to a fair trial, and protection against arbitrary detention. The Second World War, however, with its massive and systematic violations of human rights, demonstrated the need for protection of human rights beyond national borders and for recognition of these rights within an international legal framework. The European Convention on Human Rights has responded to this need. By establishing not only a list of rights to be respected by the Member States, but also by creating the European Court of Human Rights to guarantee these rights, the Convention extended the protection of human rights from the national to the regional level. The European Convention on Human Rights can be seen as the result of a maturing and extension of the concept of constitutional rights. It symbolises the transition from a predominantly national approach to the protection of human rights to a more global one, underlining the importance of a supranational legal framework to effectively guarantee these fundamental rights.
The European Convention on Human Rights represents a crucial milestone in the process of recognising and guaranteeing human rights, not only at national level, but also at international, or in this case regional, level. Prior to the creation of the Convention, the protection of human rights was seen primarily as the responsibility of individual States, reflected in their national constitutions and laws. However, the Second World War revealed the limits of this approach, showing that human rights violations could occur on a massive and systematic scale, and that national mechanisms might be insufficient or non-existent to prevent or punish them. In response, the European Convention on Human Rights, adopted in 1950, marked an important stage in the evolution of human rights protection, by placing them in a regional framework. It established a common set of standards for fundamental rights and freedoms that all Council of Europe member states undertook to respect and protect. Most importantly, it created the European Court of Human Rights, providing a judicial mechanism to guarantee these rights and provide a remedy in the event of their violation.
This development was significant because it extended the scope of human rights protection beyond national borders, recognising the need for a more global approach to deal effectively with human rights issues. The Convention and its Court have thus set a precedent for other regional and international initiatives to protect and promote human rights, reinforcing the idea that these rights transcend national borders and must be guaranteed within an international legal framework.
The post-war constitutions of a number of European states
France, as the birthplace of many of the ideas of the Enlightenment and the French Revolution, has played a historically significant role in the formulation and promotion of human rights. After the Second World War, France set about drafting a new constitution. The Constitution of the Fourth Republic was adopted in 1946, succeeding the Third Republic which had been abolished following the German invasion and the establishment of the Vichy regime. In the preamble to the 1946 Constitution, France solemnly reaffirmed the rights of Man and the Citizen as defined in the 1789 Declaration of the Rights of Man and the Citizen, a founding document of the French Revolution. This preamble underlined France's commitment to the principles of liberty, equality and fraternity, and recognised the importance of social and economic rights, reflecting the evolution of ideas about human rights since the 18th century.
In 1958, a new constitution was adopted, establishing the Fifth Republic, which is still in force today. The preamble to the 1958 Constitution explicitly includes that of 1946, as well as the 1789 Declaration of the Rights of Man and of the Citizen, thus consolidating these texts as the legal foundations of rights and freedoms in France. These constitutions and their preambles illustrate the continuity and evolution of the concept of human rights in France. They also show how the principles of the French Revolution have continued to influence French legal and political thought, and by extension, the development of human rights internationally.
The Italian Constitution of 1947, adopted in the wake of the Second World War and the fall of Benito Mussolini's Fascist regime, represents a crucial moment in Italy's constitutional history and in the recognition of fundamental rights. It marks a clear contrast with the Fascist era, reaffirming democratic principles and establishing a list of fundamental rights and freedoms for citizens. In this Constitution, fundamental rights are not only proclaimed as rights, but are also framed as duties of the citizen, thus underlining the interdependence between rights and responsibilities within society. This approach reflects a conception of human rights that recognises that the full enjoyment of individual rights is intrinsically linked to a commitment to the common good and social solidarity.
Among the rights and duties set out in the Italian Constitution are provisions relating to personal freedom, freedom of expression, the right to work, the right to education, and equality before the law, as well as commitments to social protection, economic well-being and political participation. These provisions reflect a commitment to both a liberal and social vision of human rights, incorporating civil and political rights as well as economic, social and cultural rights. The 1947 Constitution thus played a fundamental role in Italy's democratic recovery from the Fascist period, and contributed to the establishment of a solid framework for the protection of fundamental rights and freedoms in Italy. It was also an important element in the wider post-war movement in Europe to strengthen human rights, both at national level and in the context of regional cooperation such as the European Convention on Human Rights.
The German constitution, known as the Grundgesetz (Basic Law), adopted in 1949, places a strong emphasis on fundamental rights. The constitution was drafted in the aftermath of the Second World War, a period when Germany was both anxious to rebuild and determined to break with the legacy of the Nazi regime. The Grundgesetz is notable for its first section, which lists a series of fundamental rights. These rights include human dignity, the right to personal freedom, freedom of expression, freedom of belief and conscience, equality before the law, and the right to education. These provisions reflect a direct response to the atrocities and human rights violations committed under the Nazi regime. One of the most fundamental principles of the Grundgesetz is respect for and protection of human dignity, which is set out in its very first article. This emphasis on human dignity is a distinctive feature of the German Constitution and forms the basis on which all other fundamental rights are built.
The German Basic Law also established a robust constitutional system with an independent judiciary, including the Federal Constitutional Court (Bundesverfassungsgericht). This court plays a crucial role in interpreting the Constitution and protecting fundamental rights, ensuring that the actions of the legislative and executive powers comply with constitutional provisions. Germany's Basic Law represents not only a rejection of past totalitarian ideologies, but also a deep commitment to democracy, the rule of law, and the protection of human rights, making a significant contribution to the understanding and protection of fundamental rights in Europe and around the world.
These countries, having directly suffered or witnessed the disastrous consequences of totalitarian regimes, have built mechanisms into their constitutions to reaffirm and protect fundamental rights, while putting in place procedures to avoid repeating the mistakes of the past. A crucial aspect of these measures is constitutional review. In France, constitutionality review was introduced by the Preamble to the 1946 Constitution, and developed further with the creation of the Constitutional Council in 1958, under the Fifth Republic. The role of the Conseil Constitutionnel is to verify the conformity of laws with the Constitution. Initially, its role was limited to a priori control (before laws were promulgated), but it has expanded over time. In Italy, the Constitutional Court, established by the 1947 Constitution, plays a similar role. It is responsible for judging the conformity of laws with the Constitution, thus providing an effective mechanism for protecting constitutional rights and preventing abuses of power. In Germany, the Federal Constitutional Court (Bundesverfassungsgericht), established by the Basic Law of 1949, is the supreme body of constitutional control. It plays a crucial role in protecting fundamental rights and ensuring that legislative and executive acts comply with the Constitution. Article 19 of the Basic Law guarantees the right to legal recourse in the event of a violation of fundamental rights by the State.
These constitutional control systems play a crucial role in protecting human rights and preserving democracy. They ensure that the laws and actions of public authorities do not violate the fundamental rights and freedoms enshrined in constitutions. This is a direct response to totalitarian experiences, where the laws and actions of the State were often in flagrant contradiction with the principles of human rights and justice. Constitutionality review is therefore an essential part of the legal framework designed to prevent a return to authoritarian regimes and to guarantee respect for fundamental freedoms.
Constitutionality review is an important safeguard against potential abuses of legislative power, including the risk of adopting laws that could infringe individual freedoms. In a democratic system, Parliament is the body that represents the will of the people and has the power to make laws. However, this power is not absolute. The idea that "the power to do everything does not give the right to do everything" reflects the principle that even the will of the majority, expressed through legislation, must respect certain fundamental standards, in particular human rights and constitutional principles. Constitutionality review introduces a dimension of legal oversight of the legislative process. This control, often exercised by a constitutional court or constitutional council, means that laws passed by parliament can be examined to see whether they comply with the constitution, which is a country's supreme legal document. If a law is found to be unconstitutional, it can be annulled or amended to comply with constitutional norms.
This practice can be seen as a restriction on the sovereignty of the people, insofar as a judicial institution has the power to reject or modify decisions taken by elected representatives. However, it is also seen as an essential safeguard against the despotism of the majority and a protection against the adoption of laws that could violate fundamental rights. Constitutionality review therefore serves to balance two fundamental aspects of a democracy: respect for the will of the people as expressed through their elected representatives, and protection of the individual rights and freedoms that lie at the heart of the democratic conception of justice and the rule of law. This balance is crucial to preventing abuses of power and maintaining a fair and equitable political system.
In France, the Constitutional Council plays an important role in maintaining the balance between respect for popular sovereignty, as expressed by Parliament, and protection of the fundamental rights enshrined in the Constitution. The role of the Constitutional Council is to ensure that the laws passed by Parliament comply with the Constitution. This includes ensuring that the fundamental rights and freedoms guaranteed by the Constitution are respected. However, it is essential that the Constitutional Council confines itself to this regulatory role and does not replace the legislator, i.e. Parliament, which represents the will of the people. In other words, the Constitutional Council generally only intervenes when questions of constitutional conformity are raised, and its decisions are based on the interpretation of constitutional texts rather than on political or ideological considerations. This approach aims to maintain a delicate balance between the protection of rights and the preservation of representative democracy.
The idea that the constitutional court should only intervene in cases of flagrant violation of fundamental rights is an important principle for avoiding excessive interference in the legislative process. This reflects respect for the principle of the separation of powers, which is a cornerstone of democratic systems. The separation of powers ensures that each branch of government - executive, legislative and judicial - has its own responsibilities and prerogatives, and prevents the excessive accumulation of power in the hands of any one branch. The French system, as well as other systems that adopt constitutionality review, illustrate the constant attempt by democracies to strike the right balance between respect for the will of the people and the protection of fundamental rights, a challenge that lies at the heart of modern democratic governance.
The law, as the expression of the general will, plays a central role in the governance of a society. However, it is not absolute and must operate within the limits set by the Constitution, which is the supreme norm of a country. The Constitution, as the founding document and principal legal framework of a state, proclaims and protects fundamental rights and individual freedoms. These rights include, but are not limited to, freedom of expression, freedom of religion, the right to a fair trial and the right to privacy. In a democracy, it is essential that all laws passed by Parliament comply with these constitutional principles. Constitutional review is the instrument that ensures this. It is a process whereby constitutional courts or councils assess whether laws passed by the legislature comply with the provisions of the Constitution. If a law is found to be unconstitutional, it may be annulled or amended. This mechanism is fundamental to maintaining the balance of power and protecting citizens from laws that might otherwise infringe their rights and freedoms. By ensuring that laws respect fundamental rights, constitutionality review plays a crucial role in preserving the rule of law and protecting democratic principles. It is an essential safeguard against the abuse of power and ensures that, even within the framework of the will of the majority, individual rights are not trampled underfoot. Thus, constitutionality review is not only an effective instrument for guaranteeing fundamental rights at national level, but also a cornerstone of contemporary democratic systems.
Article 6 of the French Declaration of Human Rights states that the law is the expression of the general will, as opposed to the law of the Ancien Régime, which emanated from the sovereign, i.e. the king. With this notion of law described in 1789, which is no longer the expression of the monarch, the law emanating from the general will can no longer be oppressive. This article marks a significant break with the previous conception of the law under the Ancien Régime, where the law was seen as the expression of the will of the sovereign, i.e. the king.
Article 6 of the Declaration of the Rights of Man and of the Citizen states that: "The law is the expression of the general will. All citizens have the right to participate personally, or through their representatives, in its formation. It must be the same for all, whether it protects or punishes. All citizens being equal in its eyes are equally eligible for all public dignities, positions and jobs, according to their ability, and without any distinction other than that of their virtues and talents". This new conception of the law reflects a profound philosophical and political change. By declaring that the law is the expression of the general will, the Declaration lays the foundations for a legal system based on the principles of popular sovereignty and equality before the law. The law is no longer a tool at the service of the monarch, but an instrument at the service of the people, drawn up by their elected representatives and applicable equally to all citizens. This idea that the law, emanating from the general will, cannot be oppressive is central to the thinking of the Enlightenment and the French Revolution. It suggests that, since the law is created by and for the people, it must necessarily work for the common good and respect individual rights and freedoms. Of course, history has shown that even laws created by elected representatives can be oppressive if they go unchecked or violate fundamental principles of justice and human rights. This is why constitutionality review and the protection of fundamental rights, as discussed above, have become essential components of modern democracies to ensure that laws respect and protect the rights and freedoms of all citizens.
The evolution of human rights protection over the course of the twentieth century highlights an important reality: the recognition that elected representatives of the people, while necessary for a functioning democracy, are not always sufficient to protect and guarantee human rights. The tragic experiences of the Second World War highlighted the limits of political systems where fundamental rights could be violated, even in democratic states, in the absence of appropriate checks and balances. This realisation led to a reassessment of the role of the judiciary in protecting human rights. After the war, many countries set up or strengthened national judicial bodies responsible for ensuring the protection of fundamental rights. These bodies, such as constitutional courts or constitutional councils, have been given the power to scrutinise laws passed by parliament to ensure that they comply with the Constitution and the human rights principles it enshrines.
This development marks the "advent of judges" in the role of guarantors of fundamental rights. Their function is to state the law, i.e. to interpret and apply the law in such a way as to protect individual rights and freedoms. This implies a certain restriction of the sovereignty of the people, in the sense that laws, even if passed by democratically elected representatives, are subject to review and approval by the judiciary. This development is not a diminution of democracy, but rather its maturation. It reflects the understanding that democracy is not only the government of the people, but also a system in which the rights of each individual are protected and guaranteed, even against the will of the majority. Constitutional review and judicial protection of fundamental rights have therefore become essential elements of modern democratic systems, ensuring that laws and government actions respect the fundamental principles on which these systems are based.
Annexes
- déclaration universelle des droits de l’homme de 1948
- Convention européenne de sauvegarde des droits de l’homme et des libertés fondamentales de 1950
- Verfassung des Deutschen Reiches (1919) (version originale)
- Constitution française de 1875, IIIe République
- Traité de Versailles (texte intégral)
- Vers un droit commun de l’humanité, Delmas-Marty, commentaire
- Université de Genève. “Introduction Aux Droits De L'Homme.” Coursera, https://www.coursera.org/learn/droits-de-lhomme.