Human rights implications of European developments in the legal conceptualisation of the person

Abstract

Though nowadays it is common to say that the "person" is entitled by law to fundamental rights and freedoms, it must be noted that, historically, the first 'rights' developed in relation to the "person" were economic in nature. These were then followed by the development of civil rights, subsequently political rights and finally fundamental rights or human rights as referred to in this day and age. However, it is sometimes unclear how far human rights are applicable to relations between individuals. Case law relative to the European Convention of Human Rights sometimes appears to suggest that human rights can be directly applicable between individuals. On the other hand, it is more appropriate to say, in this context, that human rights are indirectly applicable meaning that the State's Convention obligations also include a duty to take into consideration the legal relationships of individuals between themselves, thus creating a "secondary positive obligation". Moreover, though there may not be one specific legal formula linking fundamental rights to the legal relations between individuals, the interpreter of the law can and sometimes has to enquire as to whether it is possible or mandatory to make this link at an interpretative level. In considering these legal relations between individuals, private law will be of the essence, even though human rights can be said to have their roots in public law. The concept of "person" must figure in any model of European private law and, just as national civil codes often start off by providing provisions in relation to the natural person, so should any European Code, which could then describe the extent of the meaning of "person" be he/she merely the contracting party or, more extensively, a person with human dignity. In further comparing European laws to national laws, one may be inclined to argue that just as national Constitutions prevail over all other national law, so should the European Constitution prevail over all other laws at the European level. Hence, elevating these rights to the level of rights guaranteed by the Constitution for Europe would be a further step toward a modern statute of the rights of the person.