Horizontal Application of Human Rights in France: The Triumph of the European Convention on Human Rights
Chapter 3: In D. Oliver and J. Fedtke (Eds), Human Rights and the Private Sphere - a Comparative Study, Routledge-Cavendish, London and New York, 2007, Pp.98-124.
25 Pages Posted: 8 Jul 2015
Date Written: June 30, 2011
The horizontal application of human rights, also known by the German word "Drittwirkung", describes the application of human right provisions in the private sphere. In other words, human rights are applied horizontally between private individuals and not vertically (as originally conceived) to relations between the state and the individual citizen. By contrast, in litigation against the State, its bodies or agents, private individuals appear inherently weaker; their rights will thus be applied vertically, in order to protect them against encroachment from a much more powerful party. The doctrine of horizontal effect originated in Germany, especially after the Second World War where the Constitution, known as the Basic Law, defines fundamental rights in a wide manner. These are seen not only as protecting individuals against interference from public action but also as the manifestation of objective values permeating the entire legal system . From this last thought follows the belief that individuals should be allowed to call upon judges to construe legislation - whether it be in public or private law - in compliance with these values. After some hesitation, it has come to be accepted that in such instances the Constitution has an indirect and not direct effect on private law. In France, in contrast to German law, the horizontal application of human right provisions has mostly a direct effect. Moreover, this flows not so much from the Constitution but the European Convention of Human Rights. These two features, i.e. the direct effect and the "conventional" basis of human rights horizontal application, give French law its distinctive features.
Keywords: horizontal application, ECHR, direct effect
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