The Cambridge Handbook Of New Human Rights: Recognition, Novelty, Rhetoric [1st Edition] 1108484735, 9781108484732, 1108676103, 9781108676106

Table of contents :
Title......Page 2
Copyright......Page 5
Contents......Page 6
Figures......Page 11
Contributions......Page 12
Acknowledgements......Page 24
Introduction......Page 26
Part I - Cross-Cutting Observations......Page 30
1 - Recognition of New Human Rights......Page 32
2 - Novelty in New Human Rights......Page 46
3 - Rhetoric of Rights......Page 59
Part II - Public Good Rights......Page 76
The Right to Water......Page 78
4 - Access to Water as a New Right in International, Regional and Comparative Constitutional Law......Page 80
5 - Something Old, Something New, Something Borrowed and Something Blue......Page 95
Rights to Housing and to land......Page 104
6 - The Human Right to Adequate Housing and the New Human Right to Land......Page 106
7 - The Human Right to Land......Page 122
The Right to Health......Page 130
8 - The Right to Health under the ICESCR......Page 132
9 - Strong New Branches to the Trunk......Page 149
The Right to a Clean Environment and Rights of the Environment......Page 160
10 - The Human Right to a Clean Environment and Rights of Nature......Page 162
11 - The Right to Environment......Page 179
Part III - Status Rights......Page 188
Rights of Older Persons......Page 190
12 - The Inter-American Convention on Protecting the Human Rights of Older Persons......Page 192
13 - The Status of the Human Rights of Older Persons......Page 208
Rights to Gender Identity......Page 216
14 - Gender Recognition as a Human Right......Page 218
15 - Pre-existing Rights and Future Articulations......Page 232
Rights of Indigenous Peoples......Page 240
16 - The Rights of Indigenous Peoples......Page 242
17 - The Evolution and Revolution of Indigenous Rights......Page 258
Animal Rights......Page 266
18 - Animal Rights......Page 268
19 - Sentience, Form and Breath......Page 278
Part IV - New Technology Rights......Page 284
The Right to Internet Access......Page 286
20 - The Right to Internet Access......Page 288
21 - The Case for the Right to Meaningful Access to the Internet as a Human Right in International Law......Page 301
The Right to be Forgotten......Page 310
22 - The Right to be Forgotten......Page 312
23 - The RTBF 2.0......Page 325
Reproductive Rights......Page 334
24 - The Fruits of Someone Else's Labour......Page 336
25 - Birthing New Human Rights......Page 351
Genetic Rights......Page 358
26 - The Relevance of Human Rights for Dealing with the Challenges Posed by Genetics......Page 360
27 - The Challenge of Genetics......Page 375
Part V - Autonomy and Integrity Rights......Page 384
The Right to Bodily Integrity......Page 386
The Right to Bodily Integrity......Page 388
29 - From Bodily Rights to Personal Rights......Page 403
The Right to Mental Integrity......Page 410
30 - The Nascent Right to Psychological Integrity and Mental Self-Determination......Page 412
31 - Critical Reflections on th Need for a Right to Mental Self-Determination......Page 429
Rights Relating to Enforced Disappearance......Page 438
32 - Rights Related to Enforced Disappearance......Page 440
33 - The Emergence of the Right Not to Be Forcibly Disappeared......Page 453
The Right to Diplomatic and Consular Protection......Page 462
The Emergent Human Right to Consular Notification, Access and Assistance......Page 464
35 - From a Human Right to Invoke Consular Assistance .........Page 478
Part VI - Governance Rights......Page 486
The Right to Democracy......Page 488
36 - Remnants of a Constitutional Moment......Page 490
37 - The Human Right to Democracy in International Law......Page 506
The Right to Good Administration......Page 516
38 - A Right to Administrative Justice......Page 518
39 - The African Right to Administrative Justice versus the European Union's Right to Good Administration......Page 532
The Right to Freedom from Corruption......Page 540
40 - Anti-Corruption......Page 542
41 - Towards a Human Rights Approach to Corruption......Page 556
The Right of Access to Law......Page 564
42 - Bentham Redux......Page 566
43 - A Right of Access to Law - or Rather a Right of Legality and Legal Aid?......Page 580
Index......Page 588

Citation preview

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The Cambridge Handbook of New Human Rights This book provides in-depth insight to scholars, practitioners and activists dealing with human rights, their expansion and the emergence of ‘new’ human rights. Whereas legal theory tends to neglect the development of concrete individual rights, monographs on ‘new’ rights often deal with structural matters only in passing and the issue of ‘new’ human rights has received only cursory attention in the literature. By bringing together a large number of emergent human rights that are analysed by renowned human rights experts from around the world, and combining these analyses with theoretical approaches, this book fills the lacuna. The comprehensive and dialectic approach, which enables insights from individual rights to overarching theory and vice versa, will ensure knowledge growth for generalists and specialists alike. The volume goes beyond a purely legal analysis by observing the contestation, rhetoric and struggle for recognition of ‘new’ human rights, thus speaking to human rights professionals beyond the legal sphere. Andreas von Arnauld is Managing Director of the Walther Schücking Institute for International Law at Kiel University, Germany. He is the author of an established German textbook on international law and numerous other publications on human rights law, peacekeeping, armed conflict, dispute settlement, comparative constitutional law and foundations of law. Kerstin von der Decken is Director of the Walther Schücking Institute for International Law at Kiel University, Germany. She does research and publishes extensively on human rights focusing on the comparison of human rights systems. She is Visiting Professor at various universities, including the University of St. Gallen, Switzerland, and Paris-Sorbonne University, Abu Dhabi. Mart Susi is Professor of Human Rights Law and Head of Legal Studies at Tallinn University, Estonia. He is the editor of several volumes focusing on new media, human rights in the digital domain and philosophy of law. Recently he has proposed the Internet Balancing Formula and has held seminars on the topic of protecting human rights in the digital domain at various universities across the globe.

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The Cambridge Handbook of New Human Rights Recognition, Novelty, Rhetoric Edited by

ANDREAS VON ARNAULD Kiel University

KERSTIN VON DER DECKEN Kiel University

MART SUSI Tallinn University

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University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06-04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108484732 DOI: 10.1017/9781108676106 © Cambridge University Press 2020 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2020 Printed in the United Kingdom by TJ International Ltd, Padstow Cornwall A catalogue record for this publication is available from the British Library. ISBN 978-1-108-48473-2 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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Contents

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List of Figures

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List of Contributors

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Acknowledgements Introduction Andreas von Arnauld, Kerstin von der Decken and Mart Susi

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Part I Cross-Cutting Observations 1

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Recognition of New Human Rights: Phases, Techniques and the Approach of ‘Differentiated Traditionalism’ Kerstin von der Decken and Nikolaus Koch

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Novelty in New Human Rights: The Decrease in Universality and Abstractness Thesis Mart Susi

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Rhetoric of Rights: A Topical Perspective on the Functions of Claiming a ‘Human Right to …’ Andreas von Arnauld and Jens T. Theilen

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Part II Public Good Rights The Right to Water 4

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Access to Water as a New Right in International, Regional and Comparative Constitutional Law Danwood M. Chirwa Something Old, Something New, Something Borrowed and Something Blue: Lessons to be Learned from the Oldest of the ‘New’ Rights – the Human Right to Water Pierre Thielbörger

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Contents

Rights to Housing and to Land 6

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The Human Right to Adequate Housing and the New Human Right to Land: Congruent Entitlements Miloon Kothari

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The Human Right to Land: ‘New Right’ or ‘Old Wine in a New Bottle’? Jérémie Gilbert

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The Right to Health 8

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The Right to Health under the ICESCR: Existing Scope, New Challenges and How to Deal with It Eibe Riedel Strong New Branches to the Trunk: Realising the Right to Health Decentrally Stefan Martini

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The Right to a Clean Environment and Rights of the Environment 10

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The Human Right to a Clean Environment and Rights of Nature: Between Advocacy and Reality Günther Handl

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The Right to Environment: A New, Internationally Recognised, Human Right Luis E. Rodríguez-Rivera

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Part III Status Rights Rights of Older Persons 12

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The Inter-American Convention on Protecting the Human Rights of Older Persons Luis Humberto Toro Utillano The Status of the Human Rights of Older Persons Tiina Pajuste

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Rights to Gender Identity 14

Gender Recognition as a Human Right Holning Lau

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Pre-existing Rights and Future Articulations: Temporal Rhetoric in the Struggle for Trans Rights Jens T. Theilen

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Rights of Indigenous Peoples 16

The Rights of Indigenous Peoples: Everything Old Is New Again Dinah Shelton

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The Evolution and Revolution of Indigenous Rights Fergus MacKay

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Animal Rights 18

Animal Rights Tomasz Pietrzykowski

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Sentience, Form and Breath: Law’s Life with Animals Yoriko Otomo

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Part IV New Technology Rights The Right to Internet Access 20

The Right to Internet Access: Quid Iuris? Oreste Pollicino

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The Case for the Right to Meaningful Access to the Internet as a Human Right in International Law Başak Çalı

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The Right to Be Forgotten 22

The Right to Be Forgotten Mart Susi

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The RTBF 2.0 Oscar Raúl Puccinelli

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Reproductive Rights 24

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The Fruits of Someone Else’s Labour: Gestational Surrogacy and Rights in the Twenty-First Century Mindy Jane Roseman

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Birthing New Human Rights: Reflections around a Hypothetical Human Right of Access to Gestational Surrogacy Eva Brems

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Genetic Rights 26

The Relevance of Human Rights for Dealing with the Challenges Posed by Genetics Roberto Andorno

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The Challenge of Genetics: Human Rights on the Molecular Level? Judit Sándor

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Part V Autonomy and Integrity Rights The Right to Bodily Integrity 28

The Right to Bodily Integrity: Cutting Away Rhetoric in Favour of Substance A. M. Viens

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From Bodily Rights to Personal Rights Thomas Douglas

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The Right to Mental Integrity 30

The Nascent Right to Psychological Integrity and Mental Self-Determination Jan-Christoph Bublitz

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Critical Reflections on the Need for a Right to Mental Self-Determination Sabine Michalowski

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Rights Relating to Enforced Disappearance 32

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Rights Related to Enforced Disappearance: New Rights in the International Convention for the Protection of All Persons from Enforced Disappearance María Clara Galvis Patiño

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The Emergence of the Right Not to Be Forcibly Disappeared: Some Comments Kohki Abe

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The Right to Diplomatic and Consular Protection 34

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The Emergent Human Right to Consular Notification, Access and Assistance David P. Stewart From a Human Right to Invoke Consular Assistance in the Host State to a Human Right to Claim Diplomatic Protection from One’s State of Nationality? Frédéric Mégret

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Part VI Governance Rights The Right to Democracy 36

Remnants of a Constitutional Moment: The Right to Democracy in International Law Sigrid Boysen

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The Human Right to Democracy in International Law: Coming to Moral Terms with an Equivocal Legal Practice Samantha Besson

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The Right to Good Administration 38

A Right to Administrative Justice: ‘New’ or Just Repackaging the Old? Hugh Corder

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The African Right to Administrative Justice versus the European Union’s Right to Good Administration: New Human Rights? Bucura C. Mihăescu-Evans

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The Right to Freedom from Corruption 40

Anti-Corruption: Recaptured and Reframed Andrew Spalding

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Towards a Human Rights Approach to Corruption Kolawole Olaniyan

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The Right of Access to Law 42

Bentham Redux: Examining a Right of Access to Law Simon Rice

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A Right of Access to Law – or Rather a Right of Legality and Legal Aid? Janneke Gerards

Index

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Figures

2.1 The ontic aspect of new human rights development 30.1 Mental self-determination

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Contributors

Kohki Abe is Professor of Peace Studies at Meiji Gakuin University, Japan and an Emeritus Professor of International Law at Kanagawa University, Japan. He holds a doctorate in law from Waseda University, Waseda University and an LLM from the University of Virginia School of Law. He currently serves as a Refugee Examination Counselor for the Minister of Justice, an associate member of the Science Council of Japan and Vice-President of the Japan Branch of the Asian Society of International Law. He is the founding president of Human Rights Now (a Japan-based international NGO). His publications include International Law’s Stories: A Kaleidoscope of State Functions (in Japanese, 2019), Human Rights-ization of International Law (in Japanese, 2014), ‘Implementation of Universal Human Rights Standards in Japan: An Interface of National and International Law, in The Universalism of Human Rights (R. Arnold (ed)., Springer, 2013)  and Overview of Statelessness:  International and Japanese Contexts (UNHCR, 2010). Roberto Andorno is Associate Professor of Biomedical Law and Bioethics at the Faculty of Law, and Research Associate at the Institute of Biomedical Ethics and Medical History of the University of Zurich. He holds doctoral degrees in law from the Universities of Buenos Aires and Paris-Est, both on topics related to the legal aspects of assisted reproductive technologies. From 1998 to 2005 he served as a member of the International Bioethics Committee (IBC) of UNESCO as the representative of Argentina. His research interests include a variety of topics at the intersection of bioethics and human rights. He is the author of numerous books, articles and book chapters on these issues, and notably of Principles of International Biolaw: Seeking Common Ground at the Intersection of Bioethics and Human Rights (2013). Andreas von Arnauld is full Professor of Public Law, Public International and European Law at Kiel University and Managing Director of the Walther Schücking Institute for International Law. Before taking this position (in 2013) he was full professor at Helmut Schmidt University Hamburg (2006–12) and Münster University (2012–13). He holds a Dr.  jur. from Hamburg University (1998) and a post-doctoral qualification (Habilitation) from Free University Berlin (2005). Among numerous publications on, inter alia, human rights law, peacekeeping, armed conflict, dispute settlement, comparative constitutional law, legal theory and legal history, he is the author of a prominent textbook on international law (in German, 4th edition 2019) and co-editor of the German Yearbook of International Law and of Die Friedens-Warte: Journal for International Peace and Organization.

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Samantha Besson is Professor at the Collège de France in Paris where she holds the Chair Droit international des institutions, and is Professor of Public International Law and European Law at the University of Fribourg in Switzerland. She has published on a variety of topics in general international law, European public law and democratic theory, with a special interest in human rights law and theory. She is the author and editor of numerous books in English and French, including Legal Republicanism:  National and International Perspectives (Oxford University Press, 2009)  ; The Philosophy of International Law (co-edited with John Tasioulas) (Oxford University Press: 2010; and The Oxford Handbook on the Sources of International Law (co-edited with Jean d’Aspremont) (Oxford University Press: 2017. She held visiting professorships at Duke, Harvard and Penn Law Schools, and has lectured in various capacities at the Hague Academy of International Law. She was a Fellow of the Wissenschaftskolleg zu Berlin and is member of the Scientific Board of the Institute of Advanced Study in Nantes. Sigrid Boysen is Professor of Public law, European and Public International Law at Helmut Schmidt University, Hamburg. Before joining Helmut Schmidt University, she was Associate Professor at Free University Berlin. Her research focuses on the theory of international law, transnational resource law and constitutional law. Her recent publications include journal articles on global public goods and various chapters on constitutional rights. She is co-editor of the international law review Archiv des Völkerrechts. Eva Brems (LLM Harvard 1995, PhD KU Leuven 1999) is Professor of Human Rights Law at Ghent University (Belgium), where she founded the Human Rights Centre (www.hrc.ugent.be/). Her research interests include most areas of human rights law, in European and international law as well as in Belgian and comparative law. See also the blog www.strasbourgobservers.com. Jan-Christoph Bublitz is a post-doctoral researcher at the University of Hamburg, and a fellow of the Center for Interdisciplinary Research (ZiF) in Bielefeld. Much of his research is situated at the intersection of criminal and human rights law, philosophy and cognitive sciences, with a special view on the legal conceptualisation of the human mind, as well as the psychological grounding of legal reasoning. He was one of the Principal Investigators of a multidisciplinary research project on memory, trauma and the law, as well as one on the legal and ethical implications of interfacing the human mind with computers. He has published extensively on matters of bioethics and the law and co-edits the book series Neuroscience, Law & Human Behavior at Palgrave. As a student, he was an intern at the then young Constitutional Court of the Republic of South Africa. More recently, he has been a research fellow of the Uehiro Centre for Practical Ethics at the Faculty of Philosophy at the University of Oxford. His research has won several prizes, among them the Young Scholar Award of the International Association of Legal and Social Philosophy. Baş ak Çalı is Professor of International Law and Director of the Centre for Fundamental Rights at Hertie School of Governance, Berlin. She is also a member of the Law School at Koç University, Istanbul where she directs the Center for Global Public Law. Her research spans public international law, international human rights law and European human rights law with a specific focus on legal interpretation, regime interaction and domestic impact. She is the Chair of the European Implementation Network and served as the Secretary General of the European Society of International Law between 2014 and 2018. She has served as a Council of Europe expert on the European Convention on Human Rights since 2002. Her publications include International Law for International Relations (Oxford University

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Press 2010)  and Authority of International Law:  Obedience, Respect and Rebuttal (Oxford University Press 2015). Danwood M. Chirwa is a professor and current Dean of Law at the University of Cape Town. He has considerable research and teaching experience in human rights, especially children’s rights, socio-economic rights, and business and human rights, on which he has authored and edited several books and journal articles. He has also worked with several international and African non-governmental organisations. A  former Secretary-General of the African Network of Constitutional Lawyers, Chirwa has served as a member of the advisory boards for many organisations including the Open Democracy Advice Centre, Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN) and the Socio-Economic Rights Institute of South Africa (SERI). He is currently a member of the Board of Trustees for the UN Voluntary Trust Fund on Contemporary Forms of Slavery, of the Board of Directors of the Global Business and Human Rights Scholars Association, and a member of a Technical Working Group of the African Partnership to End Violence against Children. Hugh Corder has been the Professor of Public Law at the University of Cape Town since 1987. A  graduate of Cape Town, Cambridge and Oxford, he started his academic career at Stellenbosch. He served as Dean of the Faculty of Law at Cape Town from 1999 to 2008. He has worked in many capacities in community organisations, mainly in the promotion of human rights. He was a member of the committee which drafted South Africa’s first Bill of Rights in 1993, and has played a leading role in administrative law reform initiatives since 1992. He has been a Fellow of the University of Cape Town since 2004. Kerstin von der Decken is full professor of German Public Law, European Union Law and Public International Law as well as a director of the Walther Schücking Institute for International Law at Kiel University in Germany. Before taking this position (in 2011) she was full professor at St. Gallen University in Switzerland (2004–11). She holds a Dr. iur. as well as a post-doctoral qualification (Habilitation) from the University of Trier in Germany. She is co-editor of the German Yearbook of International Law and of the scientific board of the Italian Journal Ordine Internazionale e Diritti Umani. She does research and publishes extensively on human rights, focusing on the comparison of human rights systems. She has been and is Visiting Professor of Public International Law at various universities, including the Université Paris I  – Panthéon Sorbonne and Université Paris II Panthéon-Assas (France), the Georgetown University Law Center, Washington DC (USA), the National University of Tucumán (Argentina), the University of Oviedo (Spain), and Paris-Sorbonne University Abu Dhabi (United Arab Emirates), where she teaches, inter alia, International Human Rights. Thomas Douglas holds degrees in clinical medicine (MBChB, Otago) and philosophy (DPhil, Oxford) and works in philosophical bioethics. He is currently Senior Research Fellow and Director of Research and Development in the Oxford Uehiro Centre of Practical Ethics, Faculty of Philosophy, University of Oxford; Hugh Price Fellow at Jesus College, Oxford; and Editor of the Journal of Practical Ethics. From 2013 to 2019 he led the Wellcome Trust-funded project 'Neurointerventions in Crime Prevention:  An Ethical Analysis’ and he is currently Principal Investigator on the project ‘Protecting Minds: The Right to Mental Integrity and the Ethics of Arational Influence’, funded by the European Research Council. María Clara Galvis Patiño graduated from Law School at Universidad Externado de Colombia, where she is a professor of International Human Rights Law. She teaches Inter-American and

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United Nations Human Rights Protection Systems, International Human Rights Law on Enforced Disappearances and Strategic Litigation. She is also a professor of the Academy for Human Rights and Humanitarian Law at the American University, Washington College of Law, where she teaches the United Nations Human Rights System. She was Vice-President and member of the United Nations Committee against enforced disappearances. She is a board member of the International Network for Human Rights (Geneva) and a member of the Consultative Council and the Academic Committee of the Berg Institute (Spain). She has been a senior lawyer for the Center for Justice and International Law (CEJIL) and a senior consultant for the Due Process of Law Foundation (DPLF). She has represented victims of gross human rights violations before the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. She has been a consultant for the International Development Law Organization (IDLO) and for inter-governmental organisations at the Office of the High Commissioner for Human Rights (OHCHR) and the United Nations High Commissioner for Refugees (UNHCR), and for cooperation agencies as USAID, GIZ and the Heinrich Böll Foundation. She frequently gives talks and conferences in various countries in Latin America and Europe and has written in the areas of International Human Rights Law, Inter-American Law, Transitional Justice, Enforced Disappearance, Business and Human Rights, Human Rights of Indigenous People and Human Rights of Women. Janneke Gerards is professor of fundamental rights law at Utrecht University, director of the Montaigne Centre for Rule of Law and Administration of Justice, and Dean of the Legal Research Master. She holds a designated chair in Utrecht University’s research programme ‘Institutions for open societies’ and she is a fellow at the Human Rights Institute (SIM). Since 2015 she has been a member of the Royal Netherlands Academy of Arts and Sciences. Her activities outside the university include being a deputy Judge in the Appeals Court of The Hague and being a member of the Human Rights Commission of the Dutch Advisory Council on International Affairs. The research conducted by Professor Gerards focuses on fundamental rights, judicial argumentation and constitutional law. The interrelation of the European Convention on Human Rights, EU law and national law plays a central role in her research. She is also active in the field of understanding the fundamental rights impact of societal developments and new technologies, ranging from genetic research to algorithms and AI. For more information, please see www.uu.nl/staff/jhgerards. Jérémie Gilbert is Professor of Human Rights Law at the University of Roehampton, United Kingdom. His main area of research is on international human rights law, and more particularly the rights of minorities and indigenous peoples. He has extensively published on the rights of indigenous peoples, looking in particular at their right to land and natural resources. Jérémie has worked with several indigenous communities across the globe and regularly serves as a consultant for several international organisations and non-governmental organisations supporting indigenous peoples’ rights. As a legal expert, he has been involved in providing legal briefs, expert opinions and carrying out evidence-gathering in several cases involving indigenous peoples’ land rights across the globe. Günther Handl is the Eberhard P. Deutsch Professor of Public International Law at Tulane University Law School. He holds law degrees from the University of Graz (Dr. iur.), Cambridge (LLB) and Yale (SJD). He is the author of several books and numerous articles on the field of public international law, international environmental law, law of the sea and nuclear energy law. Professor Handl is the recipient of a number of awards, including the Prix Elisabeth

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Haub 1997. He has served in an advisory capacity to various governments and international organisations. Nikolaus Koch is a research assistant and doctoral candidate at the Walther Schücking Institute of International Law at Kiel University, Germany. His doctoral research focuses on the UN Security Council and matters concerning use of force, in particular a state’s reporting requirements under the UN Charter in cases of self-defence. Prior to working in Kiel he was a fellow at the Kolleg-Forschungsgruppe ‘The International Rule of Law – Rise or Decline?’ at Humboldt University, Berlin. Miloon Kothari is an Independent Expert on Human Rights and Social Policy based in New Delhi, India. He was (from 2000–08) the First Special Rapporteur on adequate housing with the United Nations Commission on Human Rights and the Human Rights Council. During his tenure as Special Rapporteur he led the process that resulted in the UN Basic Principles and Guidelines on Development-based Evictions and Displacement  – the current global operational human rights standard on the practice of forced evictions:  www.ohchr.org/en/ Issues/Housing/Pages/ForcedEvictions.aspx. Mr Kothari is the founder and former coordinator of Habitat International’s Housing and Land Rights Network (HLRN) www.hlrn.org/ and founder and former executive director (1999–2013) of the Housing and Land Rights Network, India http://hlrn.org.in/. He is a founding member and former convener of the Working Group on Human Rights in India and the UN (WGHR), India’s leading alliance of human rights organisations and independent experts working on the UN’s Universal Periodic Review (UPR): http://wghr.org/, and is the President of UPR-Info, the world’s leading independent organisation that seeks to promote and strengthen the UPR: www.upr-info.org/en. Mr Kothari has published widely and has lectured and taught at leading academic institutions around the world. In 2013 he was appointed Dr Martin Luther King Visiting Scholar at the Massachusetts Institute of Technology and continued as Distinguished Visiting Scholar with the (MIT) Program on Human Rights and Justice (2014–15). In 2017 Mr Kothari was bestowed with the degree Doctor of Laws. Holning Lau is the Willie P. Mangum Distinguished Professor of Law at the University of North Carolina School of Law, where he teaches courses on international human rights and comparative constitutional law. In 2018–19 he served as an independent consultant to the International Commission of Jurists and the Danish Institute for Human Rights, supporting their work on sexual orientation and gender identity issues in Myanmar. He previously taught at Hofstra University School of Law, where he co-directed the LGBT Rights Fellowship Program, and at UCLA, where he was a fellow at the Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy. Fergus MacKay is Senior Counsel at the UK-based NGO, the Forest Peoples Programme. He has litigated several cases before United Nations treaty bodies and the Inter-American Commission and Court of Human Rights, including the Saramaka People (2007) and Kaliña and Lokono Peoples (2015) cases. He previously served as an expert advisor to the Organization of American States concerning its American Declaration on the Rights of Indigenous Peoples and as a member of the advisory panel to the World Bank’s Extractive Industries Review. Stefan Martini is a post-doctoral researcher at the Walther Schücking Institute of International Law, Kiel University, Germany. He holds a Dr. iur. from Kiel University. He

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has published on matters of comparative constitutional law, European law, International law, German domestic law and foundations of law. He is a member of JuWissBlog’s editorial board. Frédéric Mégret is a Full Professor and Dawson Scholar at the Faculty of Law, McGill University. From 2006 to 2016 he held the Canada Research Chair on the Law of Human Rights and Legal Pluralism. Before coming to McGill, he was an assistant professor at the University of Toronto, a research associate at the European University Institute and an attaché at the International Committee of the Red Cross. He is the editor, with Philip Alston, of the forthcoming second edition of The United Nations and Human Rights:  A Critical Appraisal and the co-editor of the Oxford Handbook of International Law. His research interests are in general international law, human rights, the laws of war and international criminal justice. Sabine Michalowski is professor of law at the University of Essex, UK, holding a German law degree and a diploma in comparative law from the University of Paris 2 (Assas). She is a member of the Human Rights Centre at the University of Essex and the Essex Autonomy Project, and co-director of the Essex Transitional Justice Network. Her work has concentrated, inter alia, on disability rights and on human rights issues around consent, autonomy and physical integrity. Bucura C. Mihăescu-Evans is a Legal Secretary (référendaire) in the cabinet of Judge P. G. Xuereb at the Court of Justice of the European Union. Previously, she worked as a post-doctoral research associate at the University of Luxembourg, where she was in charge with various EUrelated teaching, editorial and publishing tasks. In 2014 as a fellow of the Marie Curie INCOOP Program of the European Commission she defended her PhD on the topic ‘The right to good administration at the cross-roads of the various sources of fundamental rights in the EU integrated administrative system’ (Nomos, 2015). Prior to joining the University of Luxembourg, she worked for three years in the cabinet of Advocate General Yves Bot at the Court of Justice of the European Union. She graduated in EU Law and Political Science from universities in France, England and Luxembourg. Kolawole Olaniyan is a Legal Adviser at Amnesty International’s International Secretariat, London. Between 2004 and 2007 he was Program Director for Africa. He holds a doctorate in international law on corruption and human rights from the Law School of the University of Notre Dame, South Bend, USA. His areas of expertise include international human rights law, international economic crime law, corruption and human rights, recovery of proceeds of corruption, development and the African regional human rights system. He is a member of the Nigerian Bar Association and has advised governments, inter-governmental organisations and agencies on issues of corruption, economic crime and human rights. His book Corruption and Human Rights Law in Africa (Hart, 2014) is a leading authority in the field. His forthcoming book is Recovery of Proceeds of Corruption under International Law. Yoriko Otomo is a Fellow at the Royal Society of Arts, Governor for the Network for International Students, on the Board of Minding Animals International, and runs a consultancy, Write Like a Samurai. Her research examines cross-cultural histories of global governance, focusing on commodities and looking at the ways in which emerging patterns of economic interdependence changed the ways in which we think about gender and nature. A recent project emerging out of this work is Making Milk: The Past, Present and Future of Our Primary Food (Bloomsbury

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Press, 2017). Yoriko is currently creating a global network for scholars, activists and scientists working on human, animal and plant milks. Her latest monograph, Unconditional Life:  The International Law Settlement was published by Oxford University Press and she has written various articles on environmental law history and animal law, most recently ‘The End of the City and the Last Man: Urban Animals and the Law’. Tiina Pajuste is a lecturer in international and European law at Tallinn University. She holds a PhD from the University of Cambridge and an LLM from the University of Helsinki. Her research interests focus mainly on the activity of international organisations, examining both practical and theoretical issues that arise in this context. Her current research ventures focus on human rights and the international legal aspects of peace-making. She is also the assistant editor of the East European Yearbook on Human Rights. Tomasz Pietrzykowski is professor of legal theory and philosophy of law at the University of Silesia in Katowice and the Head of the Research Center for Public Policy and Regulatory Governance. He is the author of numerous books and articles on philosophical, scientific and legal aspects of personhood, animal rights, bioethics, legal methodology and problems of interpretation and application of the law. He is also a practising lawyer and former head of governmental administration in the Polish region of Silesia. Currently, he is the chairman of the advisory council of the Silesian Metropolitan Area composed of 41 municipalities around the city of Katowice, as well as the member of several bioethical committees, including the Polish National Ethics Committee on Animal Experimentation. Since 2015 he has been vice-rector of the University of Silesia in Katowice, Poland. Oreste Pollicino is full professor of constitutional law and media law at Bocconi University, where he teaches courses on transnational constitutional law and internet law and where he is the codirector of the LLM in Law of Internet Technologies. His research activities concern information technology law, constitutional and comparative public law, and privacy and data protection law. Professor Pollicino is regularly appointed as expert and advisor by national and international institutions. He is a member of the High Level Group on Disinformation launched by the European Commission and the co-director of two International Association of Constitutional Law research groups on ‘Algorithmic State, Market and Society’ and ‘Constitutional Law and the Internet’. He is a member of national and international editorial board and co-founder of the law review MediaLaws. Oscar Raúl Puccinelli holds a PhD in Constitutional Law, University of Buenos Aires. He has been accorded honorary PhDs and professorships in other Latin American universities. He is Professor of Constitutional Law and Human Rights and teaches at several public and private universities in his country and abroad. He is the author of numerous publications on data protection, freedom of expression, transparency and access to public information, among which stand out Habeas Data en Indoiberoamérica (Temis, Colombia, 1999); Protección de datos de carácter personal (Astrea, Buenos Aires, 2003); and Juicio de Habeas Data (Hammurabi, Buenos Aires, 2016). Among other non-governmental organisations, he is founder and current Vice-President of the International Academic Data Protection and Access to Public Information Network. He has worked as an independent lawyer and as consultant in various public institutions for the first twenty-three years of his career and since 2009 he has served as a judge at the Civil and Commercial Appellate Court in Rosario, Argentina.

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Simon Rice is a Professor of Law at the University of Sydney, Australia. He has been legal adviser to the Australian Parliamentary Joint Committee on Human Rights, Chair of the Law Reform Advisory Council of the Australian Capital Territory, a tribunal member deciding discrimination cases in New South Wales, President of Australian Lawyers for Human Rights and Director of the NSW Law Foundation. He is a co-author of The International Law of Human Rights (Oxford) and Australian Anti-Discrimination and Equal Opportunity Law (Federation). Eibe Riedel is emeritus professor of German and Comparative Public Law, European and International Law at the University of Mannheim, Germany, and a former member of the UN Committee on Economic, Social and Cultural Rights, Geneva from 1997–2012. He chaired the Board of Trustees of the German Institute of Human Rights, Berlin, until 2016, served as former Vice-President of Mannheim University, and as a director of the Institute of Medical Law, Bioethics and Public Health of the Universities of Mannheim and Heidelberg. Eibe Riedel was Swiss Chair of Human Rights from 2009–2012 at the Geneva Academy of International Humanitarian Law and Human Rights, and visiting professor from 2013–2017, and Honorary Adjunct Professor at the University of Adelaide until 2018. He has written widely on human rights, inter alia on the Optional Protocol to the ICESCR, in Essays in Honour of Simma, Oxford 2011, 574–589; on ‘ESC-Rights in Armed Conflict’ in Clapham and Gaeta (eds.), Oxford Handbook of International Law in Armed Conflict 2014, 441–468. Luis E. Rodríguez-Rivera (BA, Yale University; JD, Harvard Law School; LLM, University of Cambridge) has been a Professor of International and Environmental Law at the University of Puerto Rico School of Law since 1995, and has lectured at the Faculty of Law, University of Fribourg, Switzerland, and at the University of Barcelona, Spain. His scholarship has focused on the Human Right to Environment, Law of the Sea, Disaster Law, International Environmental Law and Puerto Rico Environmental Law. He served the government of Puerto Rico as Secretary (Minister) of the Department of Natural and Environmental Resources (2002–04), Executive Director of the Solid Waste Authority (2001–02), Executive Director of the Puerto Rico Science, Technology and Research Trust (2006–10), among other roles. He was a member of Puerto Rico’s delegation to the United Nations’ World Summit on Sustainable Development (UNWSSD) in Johannesburg, South Africa (2002), and presided over the delegation to the Regional Preparatory Meetings for the UNWSSD in Rio de Janeiro, Brazil (2002). He began working on environmental matters as Legal Counsel in the United States Environmental Protection Agency’s Region 1, Boston, Massachusetts, USA (1989). Mindy Jane Roseman, JD, PhD, is the Director of International Law Programs and Director of the Gruber Program for Global Justice and Women’s Rights at Yale Law School. Prior to joining Yale Law School, Roseman was the Academic Director of the Human Rights Program, Lecturer on Law at Harvard Law School and an instructor in the Department of Population and International Health at Harvard School of Public Health. Roseman specialises in international health and human rights, particularly as they relate to gender, sexuality and reproduction. Some of her publications include: Beyond Virtue and Vice: criminalization of sex, gender and reproduction in the age of human rights (co-edited with Alice M. Miller) (2019, University of Pennsylvania Press); ‘International Human Rights and the Mistreatment of Women During Childbirth’ (coauthored with R. Khosla, C. Zampas, J. Vogel, M. Bohren and J. Erdman) (2016) 18(2) Health & Human Rights: An International Journal; and Reproductive Health and Rights: The Way Forward (co-edited with Laura Reichenbach)(2009, University of Pennsylvania Press).

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Judit Sándor is a full professor at the Faculty of Political Science, Legal Studies and Gender Studies of the Central European University (CEU), Budapest, Hungary. She has participated in many national and international law and policy-making activities in the field of human rights, biomedical law and bioethics. In 2004–05 she served as the Chief of the Bioethics Section at the UNESCO. She has published eleven books in the field of human rights and biomedical law. Since 2005 she has been a founding director of the Center for Ethics and Law in Biomedicine (CELAB) at the Central European University. Her main research fields include bioethics, biopolitics, human rights, privacy rights, regulating new technologies, anti-discrimination law and women’s rights. Dinah Shelton is the Manatt/Ahn Professor of International Law emeritus at the George Washington University Law School, where she has taught since 2004. She was previously director of the doctoral programme in international human rights law at Notre Dame Law School (1996– 2004) and has lectured at universities throughout the United States and numerous other countries. Professor Shelton is the author of three prize-winning books, Protecting Human Rights in the Americas (co-authored with Thomas Buergenthal), Remedies in International Human Rights Law and the three-volume Encyclopedia of Genocide and Crimes against Humanity. She has also authored many other articles and books on international law, human rights law and international environmental law. Professor Shelton is an honorary member of the board of editors of the American Journal of International Law and has been awarded the ASIL Goler Butcher Prize in Human Rights Law as well as the WILIG Prominent Women in International Law honour. In 2006 Professor Shelton was awarded the Elisabeth Haub Prize for Environmental Law. She is also the recipient of the Stefan A. Riesenfeld Award in International Law and the Wolfgang Burhenne Award in International Environmental Law. In June 2009 the Organization of American States elected her to a four-year term as a member of the Inter-American Human Rights Commission and in 2010 she served as president of the Commission. Professor Shelton has received the degree of doctor honoris causa from the University of Stockholm, Sweden, and the Pazmany Peter University in Budapest, Hungary. Andrew Spalding is Professor of Law at the University of Richmond (Virginia, USA) School of Law and specialises in international anti-corruption law. He is Senior Editor of the FCPA Blog and a member of the Frequent Visiting Faculty at the International Anti-Corruption Academy (IACA) in Austria. Professor Spalding’s scholarship has appeared in the UCLA Law Review, Washington University Law Review and many other academic venues, and has been covered by the New York Times, Wall Street Journal, Economist, Atlantic, Forbes and National Public Radio. As Chair of the Olympics Compliance Task Force, Professor Spalding is collaborating with a team of international experts to design the Olympic host-country anti-corruption and human rights legal framework. His book on the topic, A Governance Legacy, is forthcoming from Oxford University Press. A  JD/PhD, Professor Spalding was previously a Fulbright Senior Research Scholar in Mumbai, India, and was the founding Chair of the American Society of International Law’s Anti-Corruption Law Interest Group. David P. Stewart is Professor from Practice at Georgetown University Law Center, where he teaches public and private international law, international criminal law, international human rights law, and international immunities. He previously served for over three decades in the Office of the Legal Adviser at the US Department of State and, prior to that, practised in general and commercial litigation in New York. He is Chair of the Board of Directors (and former President) of the American Branch of the International Law Association, a member of the

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Secretary of State’s Advisory Committee on Private International Law and a member of the American Law Institute. He served as a Reporter for the ALI’s Restatement (Fourth) Foreign Relations Law of the United States (2019), with particular responsibility for the area of foreign sovereign immunity. Mart Susi is Professor of Human Rights Law and Head of Legal Studies at Tallinn University. Before taking this position, he held several academic and administrative positions in Estonian and American universities. He was among the intellectuals who established the first private university in the former Soviet Union – the Estonian Institute of Humanities. He has been leading several international research and development projects and has established various academic networks focusing on human rights. He has authored several monographs and more than fifty articles. He is also the editor of several books on the topics of new media, and human rights and the digital society (Human Rights, Digital Society and the Law: A Research Companion, Routledge, 2019). Susi has recently introduced and is developing the concept of the Internet Balancing Formula, which was introduced in European Law Journal Special Issue on Internet and Human Rights Law, March 2019. A  related debate about proportionality in the Internet between Susi and Professor Alexy is featured in the aforementioned ELJ special issue and is translated and published in many languages. Professor Susi is the editor-in-chief of the new human rights journal established with the assistance of the European Commission  – East European Yearbook on Human Rights. Jens T. Theilen is a research associate at the Chair for Public Law, especially Public International Law and European Law (Prof. Dr.  Sigrid Boysen) at the Helmut-Schmidt-University in Hamburg, a PhD student at the University of Kiel and a legal trainee at the Higher Regional Court of Hamburg (Referendariat). They studied law at Bucerius Law School, Hamburg, and at the University of Oxford, and they were previously employed as a Research Associate at Bucerius Law School, Hamburg, and at the Walther Schücking Institute for International Law at the University of Kiel. Their research interests include trans and intersex rights, constitutional rights and human rights including human rights theory, interactions between law and time, and feminist, queer and post-colonial legal theory. They have published on these fields, for example, in the Human Rights Law Review, the European Human Rights Law Review, the European Law Review and the German Yearbook of International Law. Pierre Thielbörger is Professor of German Public Law and Public International Law at the Ruhr-University Bochum, Germany. He is also the Executive Director of the Institute for International Law of Peace and Armed Conflict (IFHV) in Bochum. He received his PhD in international law in 2010 at the European University Institute (Florence) and in the same year finished a Master’s degree in public policy at the Kennedy School of Government of Harvard University. He is the Co-Convener of the European Society of International Law’s Interest Group on International Human Rights. Since 2016 he has been the Chairperson of the General Assembly of the Europe-wide Network on Humanitarian Action. He is also Adjunct Professor at the Hertie School of Governance, where he teaches classes on international law. His areas of research expertise include public international law, human rights law, law and governance of climate change, and international criminal law, as well as the law of peace and armed conflict. Luis Humberto Toro Utillano is a senior legal officer at the Department of International Law of the Secretariat for Legal Affairs of the Organization of American States at its headquarters in Washington DC. He provides advisory services on international law issues to OAS organs, such as the Permanent Council, the Juridical and Political Affairs Commission and the

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Inter-American Juridical Committee. He is the treaty officer of the General Secretariat, and as such he oversees all actions concerning the deposit of inter-American legal instruments. He has served in the drafting of various legal instruments and mechanisms in favour of vulnerable groups, such as people with disabilities, the elderly and indigenous peoples, among others. He is also the liaison officer in the field of international humanitarian law and cooperation with the International Criminal Court. He received his LLB at the School of Law of the Université de Montreal in Canada (Faculté de Droit). He holds an LLM in International Law from the Washington College of Law (American University) and a Bachelor in Political Sciences, BSc (Université de Montreal). A. M. Viens is Associate Professor of Global Health Policy within the Faculty of Health at York University. His research centres on issues at the intersection of moral, political and legal philosophy and public policy, with a particular focus on how human behaviour, social conditions and regulation impact health. This work has been primarily interested in demonstrating the various ways in which philosophical analysis can inform and shape how we should approach different issues within health policy, practice and research. He is an honorary member of the UK Faculty of Public Health and a fellow of the Royal Society of Public Health, and has degrees in philosophy and law from the Universities of Toronto, Oxford and London.

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Acknowledgements

This volume is the fruit of a three-year collaboration under the auspices of the project ‘HURMUR – HUman Rights: MUtually Raising excellence’, funded by the European Union’s Horizon 2020 research and innovation programme (grant agreement No. 692143). It builds on discussions held both at a workshop in Kiel and a conference in Tallinn in 2016 and 2017, respectively. It would not have been possible without the help of a dedicated team of people who were involved in organising those encounters in which we were able to develop, shape and discuss our ideas, and without those who took pains to edit the present volume. The editors would like to thank Özgür Baykara and Carsten Wulff from the Tallinn team. We also wish to express our gratitude to Henning Büttner, Sinthiou Buszewski, Clemens Dorsel, Theresa Kändler, Nikolaus Koch, Wiebke Staff, Felix Telschow, Carmen Thies, Samira Wagner, Sylvia Weidenhöfer and Nathalie Zavazava from the Kiel team, with special thanks going to Jens Theilen and Stefan Martini. A final word of thanks is due to Cambridge University Press and its editorial team for their excellent support and care.

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1

Introduction Andreas von Arnauld, Kerstin von der Decken and Mart Susi

This is not a handbook in the traditional sense. Our aim is not to map the field of ‘new’ human rights in the sense that we cover all or even the most important ‘new’ rights under discussion. Rather, we aim at an analysis of unresolved issues surrounding ‘new’ human rights. That debate was kicked off with Philip Alston’s seminal article on ‘quality control’ for ‘new’ human rights published in the American Journal of International Law of 1984. While the topic has since received academic attention for over three decades, it has only ever been treated directly in fairly short journal articles, or in rather cursory remarks in book-length treatises. Legal theory tends to focus on the human rights project as a whole and to leave the development of individual rights aside. Monographs on individual ‘new’ rights, on the other hand, usually take up their development and novelty in passing – but whether one is dealing with a much-discussed right, such as the right to water, or a less-examined right, such as the right to gestational surrogacy, the focus is on their substantive problems rather than the temporal rhetoric surrounding them. By bringing together a large number of ‘new’ rights, looking at them explicitly through the temporal lens and combining the analyses with theoretical approaches in the cross-cutting introductory chapters, we hope to fill these lacunae in current research. In attempting to map these structural questions as comprehensively as is feasible, this volume then really is a handbook. When looking into the phenomenon of ‘new’ human rights, we necessarily posit that the list of human rights can, in fact, be expanded. We are well aware of the discussion as to whether there is a fixed canon of human rights that leaves no – or little – room for real ‘invention’. In our role as editors and for the purpose of this handbook, however, we are agnostic as to whether the ‘new’ human rights under discussion merely label aspects of existing rights differently, or even whether they represent human rights at all. Thus, we also do not take a stand as to whether a specific right is already recognised or whether it really is ‘new’. Neither have we, as editors, prescribed a certain position with regard to a perceived ‘rights inflation’. It is the phenomenon of ‘new’ human rights as such, and the surrounding controversies, that is of interest to us. This ‘epistemic agnosticism’ is, therefore, necessary for the project as a whole. The approach is different, however, when it comes to the individual contributions to this handbook. Here, we deliberately commissioned chapters from colleagues who have not only written on theoretical issues or human rights law in general, but who are also recognised experts on a specific right. While to some extent their chapters will map the right in question in substance, the main objective was not to faithfully report every aspect of a given right, but rather to investigate the legal discourse regarding that right with a focus on the handbook’s overarching research interest in the right specifically qua new right. One basic observation which underlies 1

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the whole concept of this volume is that ‘new’ rights are intimately connected with the concept of contestation. The controversies surrounding a certain right’s alleged novelty, for example, are evidence of this: oftentimes a right can be considered both new and not new at the same time, depending on the perspective taken. While one of those perspectives may be the ‘more correct’ or ‘better’ one according to certain standards, the rhetoric of rights and novelty (or lack of novelty) will often be a statement within a process aimed at critically engaging with and developing the status quo. To capture this paradoxical and essentially contested nature of ‘new’ rights, each chapter is briefly commented on by another expert who takes a different perspective on the right at issue. They might, for example, disagree about the merits of framing the issue as a ‘new’ human right or with regard to the broader theoretical framework. Rights may, of course, also be recognised to a varying extent in different regional or functional sub-systems of international law. The volume thus refuses to prescribe any one approach, but rather aims to capture the multiplicity of frameworks that exist in practice and therefore must, we believe, be integrated into the analysis of ‘new’ rights. From the individual contributions we distilled what appeared to us as the three central topics connected with the phenomenon of ‘new’ human rights:  recognition, novelty and rhetoric. Regarding the recognition of new human rights, we focus on the phases of recognition (the idea, emergence and full recognition) as well as on techniques for achieving this (the treaty approach, the customary international law approach and the derivation approach) and propose a new way of looking at the creation of new human rights which we call ‘differentiated traditionalism’. As to the dimension of novelty, two theses are considered. ‘The inadequacy of protection thesis’ says that the main reason for the advancement of a new human rights claim is the incapability of established human rights to provide adequate protection for certain vulnerable or marginalised groups in comparison with others, or that novel contemporary conditions challenge the capability of an established human right to provide sufficient protection for an important social value. According to ‘the decrease in universality and abstractness thesis’, the process of new human rights development is characterised by a decrease in universality of established human rights, and/or by a decrease in the level of abstractness of the respective new human rights claim. As to the rhetorical dimension, finally, we are interested in the communicative functions which raising a claim for a new ‘human right to …’ serves in the triangulation of language, concepts and society – an enquiry framed by a topical reconstruction of legal discourse. By bringing together experts on a large number of ‘new’ human rights, contextualising and evaluating those rights in detail, and also providing theoretical insights on recognition, novelty and rhetoric of ‘new’ rights in the first section, this handbook thus aims at a comprehensive analysis of issues surrounding ‘new’ human rights which is so far lacking. Insights were and will be gained dialectically with regard to both the more specific and the more abstract controversies at issue: the theoretical and comparative framework should advance the understanding of individual ‘new’ rights and their development, while the consideration of those rights in context provides an opportunity to evaluate and develop the theory in turn. In order not to exclude part of the picture, from the outset we are deliberately working with a wide and flexible notion of ‘rights’ and of ‘novelty’, since the contestation surrounding these concepts forms part of the very discourse on ‘new’ rights which we are interested in investigating. Though our focus is primarily on international human rights law, we thus include as a ‘human right’ any norm that has been labelled as such, irrespective of whether it is considered predominantly a legal or a moral right, a human right proper, a fundamental right or any other kind of subjective right – or whether it is a right at all, and not a mere obligation incumbent on states not giving rise to a legal claim on the part of a rights-bearer. For a right to qualify as ‘new’, we also

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content ourselves with the fact that a ‘new’ rights claim has been raised at some point during the last twenty or so years. Whether a right is intrinsically ‘new’ or should be seen only as ‘expansion’ of existing rights is as much a matter of contestation as it might be guided by strategic choices, and could thus be viewed differently, e.g. for different rights, in different contexts, by different actors, and depending on whether a principled, practical or strategic perspective is taken. In accordance with our overarching research focus, the selection of rights included in this handbook was guided by our wish to include the greatest possible variety. As to their status of recognition, some rights have been established only in regional or discrete legal regimes, others have been recognised in soft law instruments such as General Assembly resolutions (Alston’s famous ‘appellation contrôlée’), while yet others are still no further on than being campaigned for by interest groups at the international level. As to (perceived) triggers for championing ‘new’ rights, we selected rights that might be traced back as much to paradigmatic changes of perception (e.g. the right to gender identity) as to political (e.g. the rights to democracy or to good administration) or technological change (e.g. the right to be forgotten or genetic rights). That these developments often interact, however, is witnessed, e.g., by the right of access to reproductive medicine, which is closely linked to the campaign for parenting opportunities for samesex couples. As to their claim to novelty, we selected rights that are both at a greater distance from an already recognised, ‘canonic’, right (such as, arguably, the right to a clean environment) and those arguably closer to such a right (such as the right to water). For a change of perspective, we deliberately also included rights which are not in themselves new (e.g. the rights to health, to housing or to bodily integrity) but that have spurred the development of ‘new’ rights derived from them. To further inquire into the relationship between human rights norms we included whole sets or bundles of rights (e.g. rights of indigenous peoples, rights of the elderly, or rights related to enforced disappearance) next to (seemingly) free-standing rights. In a particular attempt to gain further insights into the rhetoric of human rights, we finally looked for rights that attempt to redefine an established body of law from a human rights perspective (such as the right to a clean environment or the right to freedom from corruption), or even to apply the concept of rights to non-humans (animal rights, rights of the environment), thereby overcoming the anthropocentricity of ‘human’ rights as such. Of course, every selection is to a certain extent contingent and thus open to critique. We could have assembled quite a different set of rights altogether. However, we believe that the selection presented here offers a sound basis for a broad and varied picture of the phenomenon of ‘new’ human rights. As the list of authors shows, we included practitioners and the occasional author with a nonlegal background in this process, yet this handbook follows a predominantly legal academic perspective. However, given that human rights as a lingua franca bridge the spheres of law, politics and ethics, and given also the need to step out of legal doctrinal research for the crosscutting issues addressed here under the themes of recognition, novelty and rhetoric, we believe that this volume will be of interest to all those dealing with human rights – whether generalist or specialist, whether lawyer, philosopher or political scientist, whether academic in research or teaching, or practitioner.

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Part I

Cross-Cutting Observations

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1 Recognition of New Human Rights Phases, Techniques and the Approach of ‘Differentiated Traditionalism’ Kerstin von der Decken and Nikolaus Koch

1.1 Introduction This chapter deals with the legal recognition of new human rights in public international law. Human rights activists, non-governmental organisations and scholars worldwide put forward suggestions and demands to widen the realm of protection through human rights beyond – occasionally far beyond  – the currently acknowledged areas.1 The contributions to this volume bear witness to the imagination and creativity of those who seek to improve the living conditions of human beings by enlarging the protective umbrella of human rights. In addition, international tribunals and treaty bodies regularly ‘discover’ new human rights within those already expressly recognised in international human rights treaties. Thus, it seems fitting to look into the birth process of a new human right until it attains ‘full recognition’ as part of public international law. Under public international law, individuals may hold rights that give them a claim on a state to act in a certain way or to omit a certain act. Some of these rights are qualified as ‘human rights’; others we may call ‘simple’ rights.2 Public international law has taken a rather pragmatic approach in differentiating between these two categories: human rights are those rights that are intimately connected to human existence in dignity.3 On many an occasion the international community has expressly referred to the ‘inherent dignity of the human person’ as the ultimate source of human rights.4 Admittedly, this approach is neither very precise nor exclusionary. Depending on one’s understanding of ‘human dignity’, a wide spectrum of rights may be considered human rights. However, certain rights will be excluded from the ‘special’ status – hence David Stewart’s discussion on the status of the right to consular assistance.5 In any event,

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H. Hannum, ‘Reinvigorating Human Rights for the Twenty-First Century’ (2016) 16 Human Rights Law Review 409. A. Peters, Beyond Human Rights (Cambridge: Cambridge University Press, 2016), p. 436 (speaking of ‘simple rights’); C. Tomuschat, Human Rights:  Between Idealism and Realism, 3rd ed. (Oxford:  Oxford University Press, 2014), pp. 3–4 (speaking of ‘rights’ and ‘human rights’). Tomuschat, Human Rights, p. 10; for alternative criteria see Peters, Beyond Human Rights, pp. 438–442. See e.g. the preambles to the UNGA, Resolution 217A on Universal Declaration of Human Rights, 10 December 1948, UN Doc. A/Res/217 (III) (A); the International Covenant on Civil and Political Rights, New York, 16 December 1966, in force 23 March 1976, 999 UNTS 171; the International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, in force 3 January 1976, 999 UNTS 3; and World Conference on Human Rights, Vienna Declaration and Programme of Action, 13 July 1993, UN Doc. A/CONF.157/23. D. Stewart, in this volume, pp. 440, 442ff.

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the differentiation’s legal consequences are not entirely clear: in the absence of a norm hierarchy in international law, human rights would not per se trump ‘simple’ rights.6 What, then, is a new human right? We consider new human rights to be those rights that, when first conceived, are not expressly recognised in any human rights treaty and are not in any other way recognised as rights in a legal sense. This understanding implies that, at first, new human rights are merely candidates for legal recognition and, initially, no more. To reach legal recognition, they must ground themselves in a formal source of public international law. In this chapter we shall shed some light on the path a new human right takes from its intellectual inception to its actual legal recognition.7 We shall draw examples from the new human rights presented in this book (Section 1.2). We shall then discuss what has been termed the ‘exceptionalist approach’ occasionally taken towards secondary norms of public international law in the field of human rights law (Section 1.3) and, finally, present our approach: ‘differentiated traditionalism’ (Section 1.4).

1.2 Phases of Recognition The recognition process follows no centrally devised action plan or procedure. We nonetheless propose that, looking at how new human rights do come about, the process may, idealistically, be divided into three phases each bearing its own characteristics (‘the idea’, ‘the emergence’ and ‘full recognition’).8 Alas, it won’t always (or even regularly) be possible to definitively determine in which phase a new human right is situated at any given point in time. The lines between the phases will remain blurred and, hence, so will any claim at ‘localising’ a right subject to dispute. Furthermore, not all human rights go through all phases:  some may be brought to full recognition directly (e.g. by a groundbreaking judgment and thus, more or less, skipping the ‘phase of emergence’, as seen with the right to be forgotten as developed by the European Court of Human Rights (ECtHR)). And, of course, others (or maybe even most new human rights) may get stuck at any point along the process without ever achieving legal recognition – they may then indefinitely dwell in the phase of idea or emergence (as seen, arguably, with the right to development or the right to democracy), or may simply fall into oblivion (in 1977 Johan Galtung und Anders Wirak put forward an extensive list of new human rights, most of which are not considered candidates for legal recognition today, e.g. the right to identify with one’s own work or the right not to be exposed to unnecessarily boring work but rather to work that requires creativity9). 6

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One possible legal consequence has been put forward by Germany in the LaGrand case before the International Court of Justice (ICJ): Germany argued that the human rights character of the provision allegedly breached by the United States ‘renders the effectiveness of this provision even more imperative’; the ICJ, however, did not pick up on this argument. See ICJ, LaGrand case (Germany v. United States of America), verbatim record 2000/27 of the public sitting held on 13 November 2000, p. 12. However, consequences do occur following adoption of a constitutionalist approach to international law: see Peters, Beyond Human Rights, section 14. For another account see V. Tzevelekos, ‘The Making of International Human Rights Law’, in C. Brölmann and Y. Radi (eds.), Research Handbook on the Theory and Practice of International Lawmaking (Cheltenham: Edward Elgar Publishing, 2016), pp. 329–353. For another arrangement see J. Nickel, Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights (Berkeley: University of California Press, 1987), p. 28; for a political science perspective see M. Finnemore and K. Sikkink, ‘International Norm Dynamics and Political Change’ (1998) 52 International Organization 887 at 894–905. See J. Galtung and A. Wirak, On the Relationship between Human Rights and Human Needs, 1978, UNESCO Doc. SS-78/CONF.630/4, para. 48 as cited in P. Alston, ‘Conjuring Up New Human Rights: A Proposal for Quality Control’ (1984) 78 American Journal of International Law 607 at 610.

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Another layer of complexity is added when we take into account regional divergences: it may well be that a new human right is fully recognised within a region, but still be in an earlier phase of recognition at the global level (e.g. rights related to enforced disappearances were recognised in a regional treaty by the Organization of American States (OAS) some time before a UN convention on the topic was adopted). 1.2.1 Phase 1: ‘The Idea’ The first phase is governed not by legal but by political and intellectual activity undertaken by human rights activists and scholars (so-called ‘norm entrepreneurs’10). This phase usually starts with discussions based on the assumption that the law must be developed to better protect certain human interests. The need for more protection may arise from the development of new technologies (e.g. in the field of genetics11) or emergence of new threats (e.g. emanating from a deteriorating environment12), changed societal conditions (e.g. an increasing number of older persons13), changed societal perceptions (e.g. an increased sensitisation for gender-related issues14) or an increased understanding of a problem’s root causes or its impact on victims (e.g. regarding enforced disappearances15). Human rights activists will raise public awareness of what they consider to be an underrated human interest in order to, inter alia, generate pressure on decision-makers (one might speak of a phase of political recognition occurring within the idea phase). They may, however, also lobby those who more immediately partake in (international or national) lawmaking: international organisations (to adopt resolutions in human rights-based language), governments (to support the recognition of a new human right on the international plane) or legislatures (to adopt national legislation granting the new human right). By means of strategic litigation, they may gauge the judiciary’s ‘weak spots’, aiming at an extensive interpretation of existing human rights. Scholars in turn flesh out any newly proposed human right: what will the content of the newly proposed human right be? What obligations ensue and for whom? How may the new human right be properly fitted into the existing legal system?16 Consider the actions by those advocating the recognition of animal rights. The Great Ape Project17 pressures national legislatures to grant basic legal rights to primates (the right to life and personal freedom) as well as the UN to adopt a declaration to the same end. An approach via the judiciary is taken by the Non-Human Rights Project, which regularly petitions for release orders on the basis of habeas corpus on behalf of chimpanzees kept in captivity, thus seeking to achieve implicit recognition of them as rights-holders.18 Both organisations, along the way, stir up public opinion. Thomasz Pietrzykowksi, as a legal scholar, conceptualises the notion of ‘animal rights’, e.g. by drawing attention to the distinction between ‘will rights’

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Finnemore and Sikkink, ‘International Norm Dynamics’, 896–901. R. Andorno, in this volume. G. Handl, in this volume. L. H. Toro Utillano, in this volume. H. Lau, in this volume. M. C. Galvis Patiño, in this volume. A conceptualisation might help avoid what is often perceived as an ‘inflation of rights’; see Nickel, Making Sense of Human Rights, pp. 27–35. For more information see www.projetogap.org.br/en. For more information see www.nonhumanrights.org/litigation/.

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and ‘interest rights’ (only the latter to be granted to animals) or by discussing the notion of ‘animal subjecthood’.19 A list of other new human rights discussed in this volume that are currently in this early phase might include (according to our judgment) the right to mental self-determination, the right to be free from corruption, the right to access of law as well as the rights of nature, that is that nature itself holds certain rights. 1.2.2 Phase 2: ‘The Emergence’ The second phase is that of ‘emergence’, which we shall subdivide into the ‘early’ and the ‘advanced’ phase. What marks the phase of emergence  – from an international lawyer’s perspective  – is the occurrence of activity of more immediate relevance to the formation of new norms of public international law. Noticeably, new actors will appear on the stage:  in particular, states (governments, legislatures and domestic courts), international organisations, human rights tribunals and treaty bodies. Of course, political activity carries on throughout this phase; in particular, lobbying remains important for driving forward the process of recognition:20 Dinah Shelton highlights indigenous peoples’ own efforts in bringing about the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).21 Scholarly work remains crucial, too:  as Günther Handl points out, making the right to a healthy environment workable will require far more conceptualising, as even more so will the notion of rights of nature, that is that nature itself actually holds certain rights.22 However, the distinctive feature of the phase is the occurrence of action by the abovementioned actors. 1.2.2.1 The Early Phase In the early phase some of the aforementioned actors will take into account the ideas and a ‘puzzle of action’ will emerge: a government might talk of the new human right, while a treaty body might state that the new human right is already implied in an existing treaty. Often, soft law instruments, such as resolutions by international organisations, will be the first to mention any new human right. Over time, several soft law instruments may be adopted on the same issue, becoming ever more precise and thus paving the way for drafting a convention. Consider the Inter-American Convention on Protecting the Human Rights of Older Persons which was opened to state accession in 2015: a first set of recommendations on the issue was adopted at a world summit meeting as early as 1982, followed by the UN Principles on Older Persons in 1991 and another set of recommendations in 2002. Several resolutions by the OAS ensued.23 1.2.2.2 The Advanced Phase As activity increases, the new human right, in order to progress towards recognition, must move towards a formal source of public international law. How this more advanced stage will look very much depends on the specific source. We shall, therefore, look at them separately. 19 20 21

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T. Pietrzykowksi, in this volume, pp. 243ff. U. Oberdorster, ‘Why Ratify? Lessons from Treaty Ratification Campaigns’ (2008) 61 Vanderbilt Law Review 681. D. Shelton, in this volume, p. 225 on UNGA, Resolution 61/295 on Declaration on the Rights of Indigenous Peoples, 13 September 2007, UN Doc. A/RES/61/295. Handl, in this volume, pp. 138 and 148. For an overview of these soft law pronouncements see Toro Utillano, in this volume, pp. 169–170.

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We shall first look at the source of treaties (‘The Treaty Approach’) and shall then turn to customary international law (‘The Customary International Law Approach’). A potential ‘short-cut’ to recognition is offered by the possibility of deriving a new human right from one (or several) already existing human right(s) (‘The Derivation Approach’). As we do not consider the source of ‘general principles of law’ a workable source for the recognition of new human rights, we shall consider it when elaborating on ‘human rights exceptionalism’ (Section 1.3.1.2). The Treaty Approach The standard approach to establishing new human rights is the adoption of a new treaty (or an optional protocol to be annexed to an already existing treaty).24 The downside of this approach is, of course, that states have to consent to any new treaty and ratify it before it may enter into force. Even if widely ratified, the treaty may still be riddled with reservations; also, the risk that states will withdraw from the treaty remains.25 But there are several advantages, too. First, a new treaty offers the strongest form of consensual basis – states will have a hard time ‘wiggling’ themselves out of obligations expressly undertaken in treaty form. Second, the new human right may be shaped so as to meet actual needs (and also the limits of states’ willingness to accept any new human rights). A regime surrounding the new human right may be devised including limitations, justifications to interventions, procedural safeguards and a treaty body monitoring implementation, rendering interpretations and receiving interstate complaints or even communications from individuals. Third, a new treaty will provide the highest degree of legal certainty. States will know the obligations they undertake when ratifying the treaty and may direct their implementation efforts accordingly. Likewise, individuals awarded protection will know their rights and may hold a state accountable upon failure of implementation. Fourth, a large number of states may easily accede to the new treaty, giving rise to a greater degree of uniformity in the understanding of human rights between states and, hence, undermine arguments of cultural relativism.26 Finally, by applying techniques of ‘evolutionary interpretation’, a treaty’s protective force may even be updated over time.27 Accordingly, new human rights treaties are proposed on an almost annual basis.28 Turning to this volume: David Stewart, for example, recommends an optional protocol to the Vienna Convention on Consular Relations29 to more clearly lay out states’ obligations regarding the right to consular assistance and to establish procedural safeguards (in the alternative, he suggests the development of a model law).30 Oreste Pollicino, regarding the right to internet access, also believes it to be ‘essential’ that a human right is contained in a treaty that not only provides ‘for its exercise, but also ensure[s] its enforcement.’31 24

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C. Chinkin, ‘Sources’, in Daniel Moeckli et al. (eds.), International Human Rights Law, 3rd edn (Oxford: Oxford University Press, 2018), pp. 65–70; E. Riedel, ‘Rethinking Human Rights – Real Reforms in Procedure and Substance?’, in Jost Delbrück et  al. (eds.), Aus Kiel in die Welt:  Kiel’s Contribution to International Law (Berlin:  Duncker & Humboldt, 2014), p.  428; J. Crawford, Brownlie’s Principles of Public International Law, 8th ed. (Oxford:  Oxford University Press, 2012), p. 638. Although few such withdrawals actually occur:  T. Christakis, ‘Human Rights from a Neo-voluntarist Perspective’, in J. Kammerhofer and J. d’Aspremont (eds.), International Legal Positivism in a Post-Modern World (Cambridge: Cambridge University Press, 2014), pp. 446–447. Chinkin, ‘Sources’, pp. 67–68. T. Thienel, ‘The “Living Instrument” Approach in the ECHR and Elsewhere:  Some Remarks on the Evolutive Interpretation of International Treaties’, in J. Delbrück et  al. (eds.), Aus Kiel in die Welt:  Kiel’s Contribution to International Law (Berlin: Duncker & Humboldt 2014), p. 165. Rather critical of this development, see Riedel, ‘Rethinking Human Rights’, p. 428. Vienna Convention on Consular Relations, Vienna, 24 April 1963, in force 19 March 1967, 596 UNTS 261. Stewart, in this volume, pp. 451–452. O. Pollicino, in this volume, p. 266.

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One subset category of human rights treaties are those ‘tailored’ to the needs of a specific vulnerable group. Therein, existing human rights are somewhat refashioned to address the specific threats a certain group is susceptible to; additionally, new human rights may be introduced. Consider again the Inter-American Convention on Protecting the Human Rights of Older Persons:  the right to health is specified so as to include, inter alia, palliative treatment and treatment for diseases that create special dependency (such as dementia or Alzheimer’s disease) (Art. 19). Another newly established right is the right to community integration (Art. 8). Dinah Shelton, too, considers, de lege ferenda, the usefulness of a tailored treaty for indigenous peoples’ rights, pointing out that these might require specific rights being ‘particularly vulnerable to human rights abuses’.32 In the genesis of a treaty, it is important to realise that states will usually not immediately opt for a new treaty. Eibe Riedel has developed an idealised model for the coming about of new treaties (in some ways corresponding to our three-phase model). At first, states will only accept non-binding instruments serving as incentives on the domestic plane. Next, a state might consent to ‘promotional obligations’33 (organising expert meetings and educational programmes, and applying public relations methods) or ‘norms of aspiration’. Only eventually and over time might a government commit to a new treaty. Riedel has described this process (which may come to a halt at any point) as the unfolding of a ‘legislative cascade’.34 The process of actual treaty drafting is, once again, marked by flexibility. Often, drafting will occur under the auspices of an international organisation – next to the UN, the OAS has been particularly productive of late.35 Within the UN the preparatory work may be undertaken by varying committees. Eventually, it is mostly the General Assembly that decides on any draft, opening it to signature (or not).36 The Customary International Law Approach Opinions as to the relevance of customary international law in the field of human rights law vary considerably.37 In any event, this approach is of less relevance than that of the treaty approach. For customary international law to develop, there has to be a general practice combined with acceptance of that practice as law (state practice and opinio iuris).38 As both may arise in a great variety of forms,39 it is difficult to generalise on how the development of a customary human rights norm will look. Any customary norm will emerge from the above-mentioned puzzle of action, if, indeed, sufficient activity accrues (we will expound on the requirements and their relative importance shortly). The customary

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Shelton, in this volume, p. 232. J. Delbrück, Die Rassenfrage als Problem des Völkerrechts und nationaler Rechtsordnungen (Frankfurt:  Athenäum 1971), pp. 108–109. E. Riedel, ‘Standards and Sources. Farewell to the Exclusivity of the Sources Triad in International Law?’ (1991) 2 European Journal of International Law 58 at 71–72. For one drafting process within the OAS see Toro Utillano, in this volume, pp. 167ff. On the process within the UN see B. Ramcharan, ‘The Law-Making Process: From Declaration to Treaty to Custom to Prevention’, in Dinah Shelton (ed.), The Oxford Handbook of International Human Rights Law (Oxford: Oxford University Press, 2013), p. 506. Crawford speaks of ‘secondary’ importance; see Brownlie’s Principles, p. 638. Thirlway claims that there are no customary human rights norms; see Hugh W. A. Thirlway, ‘Human Rights in Customary Law: An Attempt to Define Some Issues’ (2015) 28 Leiden Journal of International Law 495 at 497. Tzevelekos again stresses the importance of customary law; see ‘Making of International Human Rights Law’, pp. 331–338. Tomuschat also seems to do so; see Human Rights, pp. 42–44. See e.g. Art. 38(1)(b) ICJ Statute and UNGA, Report of the International Law Commission, 2016, UN Doc. A/71/10, Chapter V: Identification of customary international law, conclusion 2. See ILC, Report: Identification of customary international law, conclusions 6 and 10.

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international law approach offers certain specific advantages over the treaty approach:  new norms may be established without express consent by all states; general practice carried by opinio iuris will suffice to bind all states; arguably, customary human rights norms may even bind international organisations (a quite important feature).40 Furthermore, many national constitutions incorporate customary norms directly into domestic law, making them actionable on the domestic plane despite lacking treaty ratification (accordingly, customary human rights norms were mostly argued for in the United States due to its somewhat deplorable treaty ratification record41). Occasionally, customary norms will even be ranked above national statutory law – a priority which is less often given to international treaty obligations.42 However, the authors of this book only rarely rely on customary international law. David Stewart briefly touches upon it when discussing the right to consular assistance.43 Sigrid Boysen mentions a line of thought that claims a ‘customary obligation to be democratic’.44 That authors prefer to avoid this formal source may be due to the weaker consensual basis it provides compared to that of an international treaty. Also, due to the ambiguity in the source’s requirements, it is rather difficult to convincingly argue the customary status of a human rights norm; it will not be too difficult for a state to offer an equally convincing counter argumentation. Arguing customary human rights norms may therefore be a frustrating undertaking. The Derivation Approach Deriving new human rights from already existing ones, that is identifying previously unarticulated aspects of old human rights, is an established practice in public international law (which does not hold true equally for all legal systems45). Derivation is achieved by means of interpretation.46 In order to derive a new human right, the tribunal (or treaty body) must show that the new right is somehow ‘implied’ by or ‘inherent’ in one or several47 existing human rights. The way to argue this implication (or inherence48) differs as to the relationship between the ‘parent right‘49 and the offspring right. Moving from a general parent right to a specific offspring right, one may argue that the latter is fully encompassed in the former’s scope. The new human right may then, of course, be no more encompassing than the parent right; the new right remains limited by the old right. Recognising this downside, Simon Rice argues only alternatively for deriving a right of access to law while preferring a free-standing right.50 Similarly, Oreste Pollicino seeks to emancipate the right to internet access from the freedom of expression.51 40

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J. Klabbers, ‘International Institutions’, in J. Crawford and M. Koskenniemi (eds.), The Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2012), p. 235. B. Simma and P. Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens and General Principles’ (1988– 1989) 12 Australian Yearbook of International Law 82 at 86; R. Lillich, ‘The Growing Importance of Customary International Human Rights Law’ (1995–1996) 25 Georgia Journal of International and Comparative Law 1 at 3–7. Simma and Alston, ‘Sources of Human Rights Law’, 84–88. Stewart, in this volume, p. 451. S. Boysen, in this volume, pp. 465–466. See the discussion on ‘unenumerated rights’ in US constitutional law in M. McConnell, ‘Ways to Think about Unenumerated Rights’ (2013) 5 University of Illinois Law Review 1985. On the technique of derivation see P. Thielbörger, The Right(s) to Water: The Multi-level Governance of a Unique Human Right (Berlin:  Springer 2014), pp. 109–111; from a philosophical perspective see Nickel, Making Sense of Human Rights, pp. 100–105. One human right that may be derived from several parent rights is the right to water; see Thielbörger, The Right(s) to Water, pp. 64–75 and 112–120. The two terms seem to put a different emphasis on the State Parties’ original intent. Terminology used, e.g., by Thielbörger, The Right(s) to Water, p. 64. S. Rice, in this volume, pp. 541, 548–554. Pollicino, in this volume, pp. 263ff.

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Still, on occasions there are good reasons for deriving new human rights. The limited mandate of tribunals (and treaty bodies) will not allow them to establish new human rights without linking them to the corpus of rights already entrusted to them. When a ‘new’ situation occurs, one that is not within the scope of any human right (as understood at that point in time) but one that the tribunal nonetheless ‘believes’ should be covered, then the tribunal may use only the derivation approach to arrive at such coverage. One clear upside of derivation is that any new right will be part of the lex lata immediately (as it will be considered part of a binding treaty). Looking at the often decade-long drafting processes of new treaties, the derivation approach will appear quite tempting. In addition, formulating a new right will make it easier for courts and scholars to develop doctrine fitting the new right: e.g. a right to be forgotten may require different doctrine than the more general right to privacy. When there is no general parent right available, one has to derive the new right from a parent right of equal concreteness. Consider the ECtHR’s Golder case: Article 6(1) of the European Convention on Human Rights (ECHR)52 does not (expressly) contain a right to access to courts in civil proceedings. Nonetheless, the ECtHR reasoned that such a right was ‘inherent’53 in Article 6(1) ECHR, arguing (in the main) that that right was necessary to the enjoyment of the procedural guarantees contained in Article 6(1) ECHR: ‘The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings.’54 The inherence between one specific right and another specific right may thus be shown by arguing a relationship of necessity.55 The Court seems to have aimed at establishing necessity in stricto sensu (‘no value at all’). However, it seems fair to assume that a lower threshold will suffice. Gerald Fitzmaurice, for example, has recommended the standard of ‘reasonableness’, excluding those inferences that merely seem ‘possible’ or ‘desirable’ but not really ‘compelling’.56 Simon Rice seems to adopt this approach, arguing that the enjoyment of human rights is based on knowledge of the pertinent national law on that human right (thus establishing a right to access to law).57 A considerable amount of interpretation is undertaken by human rights treaty bodies.58 Although these interpretations are non-binding upon states parties, they nonetheless have an impact on a treaty’s interpretation.59 However, derivations undertaken by treaty bodies hinge on states actually accepting those interpretations (more so than for interpretation by international tribunals whose decisions are legally binding). As stated by Dinah Shelton:  interpretations rendered by treaty bodies ‘will have persuasive force insofar as the organs retain their independence, deliver reasoned and consistent opinions using accepted methods of treaty interpretation, 52

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European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, in force 3 September 1953, 213 UNTS 221. ECtHR, Golder v. United Kingdom (Appl. no. 4451/70), judgment, 21 February 1975, para. 36. ECtHR, Golder v. United Kingdom, para. 35. G. Fitzmaurice sees a logical fallacy (the ‘King of France’ paradox) at play in this argument; see his Separate Opinion to ECtHR, Golder v. United Kingdom, paras. 23–46. G. Fitzmaurice, ‘Hersch Lauterpacht – The Scholar as Judge (Part III)’ (1963) 39 British Yearbook of International Law 133 at 154, see the note entitled ‘philosophy of the inference’; Nickel, Making Sense of Human Rights, pp. 100–105. Rice, in this volume, pp. 551–552. H. Keller and L. Grover, ‘General Comments of the Human Rights Committee and Their Legitimacy’, in H. Keller and G. Ulfstein (eds.), UN Human Rights Treaty Bodies – Law and Legitimacy (Cambridge: Cambridge University Press, 2012), p. 117 note 8. The legal methodological explanation of any such impact remains disputed; see Keller and Grover, ‘General Comments’, pp.  128–133; D. Shelton, ‘The Legal Status of Normative Pronouncements of Human Rights Treaty Bodies’, in H. Hestermeyer et al. (eds.), Coexistence, Cooperation and Solidarity – Liber Amicorum Rüdiger Wolfrum, 2 vols. (Leiden: Martinus Nijhoff Publishers 2012), vol. I, pp. 553–575.

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and establish a pattern of compliance by States parties.’60 Accordingly, the right to water cannot be considered part of lex lata ‘merely’ because it has been derived by the Committee on Economic, Social and Cultural Rights; the Committee’s interpretation, however, forms an essential part of the aforementioned ‘puzzle of actions’.61 1.2.3 Phase 3: ‘Full Recognition’ The third phase begins when the new human right has become legally binding by any of the means described above. When exactly this moment arrives is, of course, the easiest to identify when it comes to new human rights treaties: once a treaty is in force, the rights contained therein are binding upon all ratifying states; e.g. the Convention on the Rights of Persons with Disabilities62 has been ratified by nearly 180 states. The new rights contained therein, hence, are fully recognised by those states. When it comes to customary international law, the moment of full recognition becomes far more difficult to determine (a court decision based on a customary human rights norm may be helpful here). For example, the rights of indigenous peoples as contained in the UNDRIP may be on a path to recognition; however, they probably still fall short of full recognition as free-standing customary rights. The right not to be subjected to torture is again considered a customary human rights norm.63 Rights that have been derived include, e.g., the above-mentioned right to access to courts as derived by the ECtHR in the Golder case.64 As mentioned before, the right to water has been derived, however ‘only’ by a human rights treaty body; full recognition hence will require more acceptance by states.65 It is important to bear in mind, however, that rights may also be fully recognised on a regional level ‘only’ while still being in an earlier phase of recognition on the global level. For example, the right to sport is expressly contained in the Arab Charter of Human Rights,66 not, however, in other instruments. The right to be forgotten, which is now contained in Article 17 of the General Data Protection Regulation,67 is binding on EU Member States only.68

1.3 ‘Human Rights Exceptionalism’? There exists a decade-long debate on whether certain secondary norms of public international law have been (or should be) altered in the field of international human rights law.69 According to those favouring (or identifying) such an alteration  – an approach Jean d’Aspremont has

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D. Shelton, ‘Normative Pronouncements of Human Rights Treaty Bodies’, p. 574; for an analysis from a process perspective see Keller and Grover, ‘General Comments’, pp. 128–133. D. Chirwa, in this volume, p. 64. Convention on the Rights of Persons with Disabilities, New  York, 13 December 2006, in force 3 May 2008, 2515 UNTS 3. Crawford, Brownlie’s Principles, p. 642. See above at 1.2.2.2 The Derivation Approach. Ibid. Arab Charter on Human Rights, Tunis, 22 May 2004, in force 15 March 2008, reprinted (and translated) in (2006) Boston University Law Review 147 at 149. European Parliament and Council of the European Union, Regulation (EU) 2016/79 (General Data Protection Regulation), 27 April 2016, (2016) Official Journal of the European Union L 199/1. M. Susi, in this volume, pp. 294–295. J. d’Aspremont, ‘Expansionism and the Sources of International Human Rights Law’ (2016) 46 Israel Yearbook on Human Rights 223; P. Alston, ‘Making Space for New Human Rights: The Case of the Right to Development’ (1988) 1 Harvard Human Rights Yearbook 3 at 11–13 (speaking of ‘specialist isolationism’); A. Pellet, ‘ “Human Rightism” and International Law’ (2000) 10 Italian Yearbook of International Law 3.

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termed ‘human rights exceptionalism’ – secondary rules of international law remain generally valid, some requirements or modes of legal reasoning, however, cannot be applied as strictly as in other branches of international law. Arguments put forward in favour of this exceptionalism focus on the non-reciprocal character of human rights obligations, their ‘constitutional’ nature or the ‘foundational interests’ they protect.70 The ‘opposing’ side cautions against a fragmentation of international law that might occur when secondary norms are interpreted differently across the many international legal regimes.71 Also, they caution against substituting a lack of political will of states by other means (e.g. by a ‘softening’ of the requirements to the formation of customary international law); eventually, the cause of human rights may suffer as a result.72 In the following we shall, exemplarily, address some of the exceptionalist claims. We shall first address some claims regarding the formation of new rules of public international law, however, therein limiting ourselves to claims pertaining to the sources of customary international law (Section 1.3.1.1) and general principles of law (Section 1.3.1.2). We shall then look at exceptionalist claims pertaining to the rules on treaty interpretation (Section 1.3.2).73 1.3.1 Exceptionalism and the Requirements for the Formation of New Rules of Public International Law 1.3.1.1 Customary International Law Many exceptionalist claims turn on the requirements for the formation of customary international law. Anthea Roberts has coined the terms ‘traditional’ and ‘modern custom’.74 Traditional custom is focused on the element of state practice; opinio iuris serves as a secondary means to exclude ‘customary’ behaviour that is mere courtoisie. The traditional approach is, hence, inductive: a legal rule is inferred from a multitude of state actions. The International Court of Justice (ICJ) took this approach, inter alia, in its North Sea Continental Shelf decision.75 Those seeking to establish customary human rights norms, however, often face difficulties in identifying sufficient state practice: either there is a lack thereof or, unfortunately, there is even state practice contradicting the newly proposed norm. Another problem is that state practice often does not take place in the international arena but rather within states, and examples are therefore more difficult to detect and gather.76 What is available to international lawyers, however, is a constant stream of official pronouncements committing to human rights. Many scholars therefore advocate an understanding of customary international law that allows for emphasising 70

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For an overview see d’Aspremont, ‘Expansionism’; M. Fitzmaurice, ‘Interpretation of Human Rights Treaties’, in Dinah Shelton (ed.), The Oxford Handbook of International Human Rights Law (Oxford: Oxford University Press, 2013), pp. 740–744. See e.g. UNGA, Second Report on the Identification of Customary International Law, 22 May 2014, UN Doc. A/CN.4/672, para. 28. See e.g. G. Nolte, ‘The International Law Commission and Community Interests’, in G. Nolte and E. Benvenisti (eds.), Community Interest Across International Law (Oxford: Oxford University Press, 2018), p. 101. Many questions we shall leave unaddressed, e.g. the matter of reservations to human rights treaties or the relevance of non-state actors and international organisations in the formation of rules of customary international law. A. Roberts, ‘Traditional and Modern Approaches to Customary International Law:  A Reconciliation’ (2001) 95 American Journal of International Law 757; see also J. Kammerhofer, ‘Orthodox Generalists and Political Activists in International Legal Scholarship’, in M. Happold (ed.), International Law in a Multipolar World (London: Routledge, 2012), pp. 146–153; J. Wouters and C. Ryngaert, ‘Impact on the Process of the Formation of Customary International Law’, in M. Kamminga and M. Scheinin (eds.), The Impact of Human Rights Law on General International Law (Oxford: Oxford University Press, 2009), pp. 99–131. ICJ, North Sea Continental Shelf (Federal Republic of Germany v. Netherlands), Judgment, 20 February 1969, ICJ Reports 1969, p. 3. Tomuschat, Human Rights, p. 42.

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opinio iuris over state practice. Frederic Kirgis famously placed the two elements on a ‘sliding scale’ (making it possible to downplay state practice in cases of ‘morally distasteful behaviour’).77 Exceptionalists, hence, take a more deductive approach:  setting out from the statement of a general rule, they only secondarily ask whether that rule is actually supported by state practice. Opposing state practice may then even be set aside. Oscar Schachter, in his 1982 Hague Lecture, claimed that ‘when violations of these strongly held basic rights of the person take place, they are to be regarded as violations, not as “State practice” that nullifies the legal force of the right’.78 Another strand of exceptionalists has argued that verbal acts – not merely state action ‘on the ground’ – should be considered state practice.79 Such a modern understanding of customary international law may take support from the ICJ’s Nicaragua decision.80 The state of the lex lata probably lies somewhere in the middle of these two positions. The International Law Commission (ILC), in its current work on the formation of customary international law, has affirmed that the ‘two element’–approach applies to all fields of international law.81 However, it also acknowledged that when ascertaining the formation of customary rules, regard must be had to the ‘nature of the rule’ and ‘the particular circumstances in which the evidence in question is to be found’82 and thus somewhat allowing for differentiation between the many regimes of international law. The ILC also acknowledged that verbal acts may constitute state practice, in particular ‘conduct in connection with resolutions adopted by an international organization or at an intergovernmental conference’;83 however, the ILC repeatedly stressed that such a resolution ‘cannot, of itself, create a rule of customary international law’.84 We agree with the ILC’s approach. In particular, when it comes to General Assembly resolutions one must bear in mind that the General Assembly is first and foremost a political organ  – words spoken are, accordingly, first and foremost politically, not legally motivated. Accordingly, resolutions must be assessed ‘with all due caution’.85 Looking from the perspective of legal policy, international law must remain responsive to the international community’s ‘legislative needs’. Blindly adhering to the traditional approach will not satisfy these needs and will eventually undermine international law’s credibility as a useful tool in tackling modern-day problems. However, it is equally important that rules of customary international law have a basis in state practice, otherwise states will not feel compelled to adhere to those rules, thus again undermining international law’s credibility. 1.3.1.2 General Principles of Law Another source that is occasionally put forward to ground human rights in law is that of ‘general principles of law’, as contained in Article 38(1)(c) of the ICJ Statute. What these principles are exactly and how they may be identified is uncertain and disputed.86 The dominant view holds 77 78

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F. Kirgis, ‘Custom on a Sliding Scale’ (1987) 81 American Journal of International Law 146 at 148. O. Schachter, ‘International Law in Theory and Practice: General Course in Public International Law’ (1982) 178 Recueil des cours 21 at 336. Lillich, ‘Customary International Human Rights Law’, 12–14 and 18; Wouters and Ryngaert, ‘Formation of Customary International Law’, p. 115. ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Judgment (Merits), 27 June 1986, ICJ Reports 1986, p. 14, paras. 184, 186. ILC, Report: Identification of customary international law, conclusion 2 and commentary, para. 6. Ibid., conclusion 3. Ibid., conclusion 6. Ibid., conclusion 12(1) and commentary, para. 6. ICJ, Military and Paramilitary Activities in and against Nicaragua, para. 70. A. Pellet, ‘Article 38’, in A. Zimmermann et al. (eds.), The Statute of the International Court of Justice – A Commentary, 2nd ed. (Oxford: Oxford University Press, 2012), para. 250.

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that the term general principles refers to legal principles (or rules) of a broad nature that have been developed in municipal systems (in foro domestico) and that may sensibly be applied on the international plane.87 Bruno Simma and Philip Alston, however, contest that view: general principles may be established directly on the international plane from where they percolate ‘downwards’ to the domestic sphere. These principles of international law may be inferred from statements of consensus, such as those expressed at global summits or in UN resolutions.88 The concept of general principles seems rather stretched in this interpretation: designed as a gapfiller to avoid situations of non-liquet,89 it is used by Simma and Alston to do the heavy lifting regarding broad, substantive and often highly contested issues.90 The same assessment – though with less force – applies to the suggestion made by Jan Wouters and Cedric Ryngeart: accepting the dominant view, they believe that human rights have gathered sufficient support in national constitutions and may therefore (even in the absence of ‘strict respect’ for them) be ‘piggybacked’ to the international plane.91 Anyhow, in the end approaches focusing on this source do not seem to have had a great impact on the development of new human rights;92 indeed, the authors of this book do not seem to rely on that source (that is, at least expressly93). 1.3.2. Exceptionalism and the Rules on Treaty Interpretation When interpreting human rights treaties (including when deriving new human rights from such treaties), tribunals, treaty bodies and scholars sometimes have adopted an interpretative approach that differs from that in general international law or other fields of international law.94 The approach seems marked by a certain bias towards the protection of human rights.95 These special interpretative techniques mostly remain within the (rather vague) limits set by the Vienna Convention on the Law of Treaties (VCLT).96 However, interpreters do make good use of the broadly formulated provisions of the VCLT and strongly emphasise the interpretative element of ‘object and purpose’. For example, George Letsas states that the ECtHR ‘rejected a view, common amongst many lawyers and judges, that legal interpretation is an inquiry into the linguistic meaning of words’.97 Furthermore and in particular, originalist approaches

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Pellet, ‘Article 38’, para. 259; H. Thirlway, The Sources of International Law (Oxford: Oxford University Press, 2014), p. 95; Crawford, Brownlie’s Principles, pp. 34–35. Simma and Alston, ‘Sources of Human Rights Law’, 102–106. Also stressing the utility of ‘general principles’, see Riedel, ‘Rethinking Human Rights’, pp. 430–431; Ramcharan, ‘The Law-Making Process’, pp. 499 and 514; Tomuschat, Human Rights, p. 43. Pellet, ‘Article 38’, para. 250. Pellet, ‘Human Rightism’, 5–7; Thirlway, Sources of International Law, p. 96 note 11. Wouters and Ryngaert, ‘Formation of Customary International Law’, pp. 120–122. Chinkin, ‘Sources’, p. 74. Tomuschat points out that lawyers often refer to customary international law when actually moving within the purview of ‘general principles’, thereby drawing on customary law’s ‘greater potential of persuasion’; see Human Rights, p. 43. Fitzmaurice, ‘Interpretation of Human Rights Treaties’, pp.  739–771; Christakis, ‘Human Rights from a Neovoluntarist Perspective’, pp.  421–450; G. Letsas, ‘Strasbourg’s Interpretative Ethic:  Lessons for the International Lawyer’ (2010) 21 European Journal of International Law 509. E.g. human rights tribunals have, partly, established a de facto hierarchy in favour of human rights; see E. de Wet and J. Vidmar, Hierarchy in International Law: The Place of Human Rights (Oxford: Oxford University Press, 2012), pp. 306–307. Fitzmaurice, ‘Interpretation of Human Rights Treaties’, p.  769; Thienel, ‘The “Living Instrument” Approach’, pp. 174–177. See the Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, in force 27 January 1980, 1155 UNTS 331. Letsas, ‘Strasbourg’s Interpretative Ethic’, 520.

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to interpretation (advising judges to ‘immerse themselves’98 in the society which adopted the text) are rejected by interpreters of human rights norms.99 We may also find this interpretative approach when looking at the chapters of the present book; e.g., when deriving new human rights, the authors mostly advance from a teleological perspective and do not entertain historic or text-oriented arguments.100 We would like to recommend taking a cautious approach to deriving new human rights by means of a more generous reliance on a treaty’s object and purpose. To any interpreter the derivation technique will seem rather tempting: the new human right will be placed into an existing treaty regime as into the Bosom of Abraham; (more or less) covered by the state party’s initial consent to the parent norm, the new right will be part of lex lata instantly. The temptation of the derivation approach is further heightened by the fact that (as observed by Cecilia Medina) it is almost impossible to arrive at an outright illegal interpretation.101 To states as the addressees of any new obligations, however, the procedure might look as though white rabbits were being pulled from empty hats.102 At some point, accusations of ‘judicial activism’ may arise, damaging the tribunal’s authority and, eventually, that of the human rights cause in general.103 Beyond the issue of reputation, Günther Handl draws attention to other possible deficiencies of judicial activity, such as the lack of democratic legitimacy and, on occasion, of technical competence.104

1.4 Our Approach: ‘Differentiated Traditionalism’ The lack of any procedure or directing authority for the recognition of new human rights has left some unease in the field of human rights law. In 1984 Alston, inspired by the procedures of the ILC, recommended a corresponding procedure (an “appellation contrôlée”105) to be set up under the auspices of the UN in order to ensure ‘thoughtful consideration’ of any new human right.106 No such procedure came about. Somewhat sharing in Alston’s unease, we propose not a procedure for the further development of human rights but an approach which we shall call ‘differentiated traditionalism’. Our approach is ‘traditionalist’ in so far as we caution against carrying human rights exceptionalism too far – from a legal perspective as well as from the perspective of legal policy (putting forward the above-mentioned arguments). Furthermore, we recommend differentiation when talking about the legal status of any new human right: whether such a human right is recognised ‘in public international law’ can often not be dealt with in a binary ‘yes or no’ fashion – rather, one must specify any statement as to the right’s content and geographical scope of application. Also, the phases of emergence and the different forms of recognition may serve to further differentiate as to the legal status of any new human right. P. Brest, ‘The Misconceived Quest for the Original Understanding’ (1980) 60 Boston University Law Review 204 at 208. 99 Letsas, ‘Strasbourg’s Interpretative Ethic’, 512–520. 100 See e.g. Rice, in this volume, pp. 548–554. 101 C. Medina, ‘The Role of International Tribunals: Law-Making or Creative Interpretation’, in Dinah Shelton (ed.), The Oxford Handbook of International Human Rights Law (Oxford: Oxford University Press, 2013), p. 649. 102 See the criticism put forward by G.  Fitzmaurice against the majority in his separate Opinion to ECtHR, Golder v. United Kingdom. 103 Medina, ‘The Role of International Tribunals’, pp.  649–670; Christakis, ‘Human Rights from a Neo-voluntarist Perspective’, pp. 434–437. 104 Handl, in this volume, pp. 145–146. 105 In imitation of the review procedures for French wine; see the website of the Institut national de l’origine et de la qualité at www.inao.gouv.fr/eng/. 106 Alston, ‘Conjuring Up New Human Rights’, 607 at 618–620. 98

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Taking as an example the ‘right to nature’, that is a human right to a healthy or clean natural environment, several regional instruments contain rights that may very well be discussed – as in this book – under the common headline of ‘right to nature’. However, it is important to differentiate these – as Handl and Rodgríuez-Rivera have done in their respective chapters – as to their regional application and, even more importantly, their precise material content: a right guaranteed in the African Convention on Human and Peoples’ Rights107 may have a different content (either by express formulation or subsequent interpretation) than a ‘similar’ right within the Inter-American human rights system.108 Any judgment by the ECtHR on the issue is, in turn, specific to the ECHR (where any such right is not conventionally guaranteed but must be derived and is, therefore, subject to certain restrictions109). When talking about a ‘right to nature’, these differentiations must be kept in mind, in particular when arriving at general conclusions on the current status of international law regarding any such right and its precise content. Another example, focusing more on the ‘traditionalist’ element of our approach, may be the rights of indigenous peoples: several authors deem these to be on a path to customary law status. When assessing such a status, it is important to bear in mind general international law on the creation of customary norms. Eventually, one must gather state practice and opinio iuris regarding specific claimed indigenous rights. Also, it will not suffice to point at the overwhelming majority that voted in favour of the UNDRIP without considering the Declaration’s context, its genesis and precise formulation. However, by describing indigenous rights, e.g., as ‘emergent’ or in an ‘advanced stage’, the current development in the field of indigenous rights may be acknowledged without losing sight of the fact that the discussed rights may not yet have been ‘fully recognised’.

1.5 Conclusion Expanding the human rights regime in order to adapt it to new circumstances as well as changing needs and perspectives is a necessary and worthy endeavour. Human rights law requires an inherent dynamism lest human rights lose their capability to solve the problems that people face in a modern-day world. The expansion of the human rights regime, however, does not constitute an end in itself. Expansion should only be sought if necessary. Human rights (qua legal rights) must remain firmly grounded in law. Finally, expanding the human rights regime may also be a matter of proper timing. International law does not work in a vacuum – the ‘political possibilities [of realisation] at a particular juncture of history’110 must be considered; e.g., in certain times the derivation of a new human right by a tribunal may be more acceptable than in others. Thus, the key challenge is to achieve a balance between ‘the integrity and credibility of the human rights tradition’ and the ‘need to adopt a dynamic approach’.111 The ‘differentiated traditionalism’ presented in this chapter may be an approach which helps to strike this balance.

African Charter on Human and Peoples’ Rights (Banjul Charter), Nairobi, 27 June 1981, in force 21 October 1986, 1520 UNTS 217, Art. 24. 108 Art. 11 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), San Salvador, 17 November 1988, in force 16 November 1999, (1988) OAS Treaty Series No. 69. 109 See above Section 1.2.2.2 The Derivation Approach. 110 J. Kunz, ‘The Swing of the Pendulum:  From Overestimation to Underestimation of International Law’ (1950) 44 American Journal of International Law 135 at 140. 111 Alston, ‘Conjuring Up New Human Rights’, 609. 107

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2 Novelty in New Human Rights The Decrease in Universality and Abstractness Thesis Mart Susi

2.1 Introductory Notes – Entering Unexplored Territory The element of novelty in relation to new human rights has two main aspects – epistemic and ontic. The epistemic aspect is influenced by time and refers to the process of knowledge development and discursive practice from the introduction of the idea of a new human rights claim, usually reflecting a fundamentally important social value, until sometime after its regional or universal recognition either in human rights positive or soft law, or conversely, its rejection. The claim of ‘novelty’ starts before and ends after the recognition of a new human right in the family of so-called stand-alone human rights. The ontic aspect of novelty refers to the conceptualisation of a ‘new’ human right within the circle of already established human rights. The ontic aspect is about the content of the new human rights claim vis-à-vis established human rights, the latter understood as human rights where no contestation about their existence in principle and their recognition exists. What are the reasons for advancing a new human right claim instead of confining oneself to broadening the scope of an existing human right through dynamic academic or judicial interpretation? The claim of novelty begins when the idea of a new human right has acquired some academic and/or judicial and/or political articulation regionally or globally. The claim of novelty will wither after this new human right has gained a critical mass of recognition in some formal capacity. Because of the complexity of modern human rights architecture, a new human right can also remain in an ongoing state of contestation, which can lead to international fragmentation on the need for this right or the rejection of the right in the future. Even if a new human right were to be introduced and then accepted via discursively ideal conditions, it could claim novelty for at least some time thereafter. The contestation of a new human rights claim can also lead to this new human right being conclusively viewed as part of an existing right, in which case the term ‘new’ carries predominantly rhetorical weight. This chapter reflects on these aspects of new human rights claims, relying upon and generalising the arguments and conclusions from chapters in the present collection. The volume and scope of the new human rights discussed surpasses the critical amount of scholarly evidence necessary for presenting a theoretical framework for understanding why and how new human rights claims emerge, how they develop, what their normative and discursive weight in relation to established human rights is, and lastly, whether the justifications offered are sufficient

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to make a case for the new human rights. This chapter will also offer a theoretical response to the rights inflation argument. Before embarking on the intricacies of the origin and justification of new human rights claims, a caveat is to be noted. The discourse of the element of novelty in new human rights has predominantly remained abstract without much support from concrete examples allowing generalisation. This means that the present chapter takes us to unexplored territory. For example, Bruno Simma and Philip Alston’s observation that ‘in the development of human rights law principles have always preceded practice’1 becomes problematic in the light of the chapters in this book, since principles and practice in human rights development are conditional upon one another in both directions. The possibility that practice can precede principles will be shown below through the inadequacy of protection thesis, as insufficient protection of some value or group in practice leads to the articulation of new human rights principles. From the other side, it is because of the principle of equality that the proposition to change such practice emerges in the first place.

2.2 The Justification for New Human Rights Claims – the Ontic Dimension The primary, if not only, reason for advancing new human rights claims is based on the realisation that present human rights law and practice does not provide adequate protection for some important social, political or other value, or alternatively, does not adequately protect certain vulnerable or marginalised groups. The challenges to the status quo have multiple origins, which, as will be shown below, mostly appear utilitarian. The common characteristic of these challenges to the status quo is the understanding that established human rights are not capable of providing an adequate degree of protection of these values or the groups which claim insufficient protection through established rights. We can label this ‘the inadequacy of protection thesis’. This thesis brings under one umbrella the political and naturalist perspectives of human rights development. According to the political perspective, human rights development is justified through the identification of deficiencies of specific rights application dependent on national contexts2. This perspective is contrasted by the naturalist perspective, which connects human rights development to the conceptualisation of demands of one human on other human individuals due to their common human characteristics, irrespective of practical conditions3. The inadequacy of protection thesis contains both the political and naturalist perspectives, the political perspective being connected to vulnerable or marginalised groups and the naturalist perspective to the aspect of values. The inadequacy of protection thesis shows that the ‘contradiction between conceptions of human rights as either inherent in human beings by virtue of their humanity or as benevolently granted by the state’4 is irrelevant for understanding the process of human rights development. This is because human rights development is not conditional on 1

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B. Simma and P. Alston, ‘The Sources of Human Rights Law: Custom, Ius Cogens, and General Principles’ (1992) 12 Australian Yearbook of International Law 82 at 107. For the political perspective on human rights, see for example: C. Beitz, ‘What Human Rights Mean’ (2003) 132 Daedalus 36–46. See for example T. Dare, What Are Human Rights?’ (2017) Philosophy Now, available at https://philosophynow.org/ issues/118/What_Are_Human_Rights, where he writes: ‘But because the political view construes human rights as dependent upon political institutions and practices, it is unlikely to satisfy those attracted to human rights precisely because of their independence from particular political practices.’ P. Alston, ‘Making Space for New Human Rights: The Case of the Right to Development’ (1988) 1 Harvard Human Rights Yearbook 3 at 31.

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whether a human right is granted by the state or is inherent in human beings. This contradiction is transposed into new human rights as well. There are two subsequent matters of justification related to the inadequacy of protection thesis: first, how such inadequacy is justified; and second, whether the introduction of a new human right is a justified response to such perceived inadequacy. 2.2.1 Origins of the Inadequacy of Protection Claim There are six origins to the inadequacy of protection claim. The first origin is related to the desire to bring about political change internationally or domestically, either as manifest in an ideal goal or realisable through practical steps. In other words, new human rights are seen as instruments in the service of a political agenda. Should certain new human rights be established and recognised, then the respective political agenda could be realised more fully, the argument says. Hugh Corder stresses the aspirational nature of the very idea of human rights in relation to administrative justice as a new human right.5 Bucura Mihăescu-Evans seconds by asking whether there is a need for a change of culture towards greater accountability, responsiveness and openness, which can be achieved via recognising a human right to administrative justice.6 Frédéric Mégret points out that the right to consular protection can help to strengthen the ties to one’s country of nationality.7 Andrew Spalding writes about the dichotomy between corruption and human rights: the anti-corruption conventions do not frame corruption as a rights violation, and human rights instruments do not mention corruption; however, the cause of the anticorruption movement could be strengthened by a human right to no corruption.8 Tiina Pajuste predicts that the recognition of the rights of older persons as human rights increases the visibility of that issue and might elicit more action from states.9 Roberto Andorno reports that UNESCO and the Council of Europe have played crucial roles in human rights strategic development for genetics.10 Last but not least, Sigrid Boysen hints that a human right to democracy could be used as a legal basis for intervention in countries that lack democratic governance.11 The second origin is from the push by civil society or special interest group agendas. Eva Brems writes that new human rights, in particular the right of access to gestational surrogacy, have emerged from the push by people who have been structurally marginalised.12 Pajuste points to the push for the recognition of the rights of older persons by the advocacy efforts of non-governmental and governmental organisations.13 Miloon Kothari describes how the right to adequate housing and land has been used as an advocacy tool by social movements and campaigns across the globe.14 Fergus MacKay points out that sustained and highly effective advocacy by indigenous peoples has been central to the development of indigenous rights.15

5 6 7 8

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H. Corder, in this volume, p. 493. B. Mihăescu-Evans, in this volume, p. 509. F. Mégret, in this volume, p. 455. A. Spalding, in this volume, p. 525. Spalding asks: ‘Would the global anti-corruption movement be strengthened if we understood corruption as the violation of a human right?’ T. Pajuste, in this volume, p. 184. R. Andorno, in this volume, pp. 339ff. S. Boysen, in this volume, p. 466. E. Brems, in this volume, p. 330. Pajuste, in this volume, p. 184. M. Kothari, in this volume, p. 81. F. MacKay, in this volume, p. 233.

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The third origin is related to the understanding that present human rights law does not allow sufficient protection towards certain new challenges emerging in the contemporary world. Judit Sándor reflects that a new catalogue of human rights with more specific provisions for genetic rights would offer a better framework for incorporating new rights that may already have emerged in ethical or political debates.16 David Stewart points out that traditional international law has not conclusively articulated the right to consular assistance as a human right.17 Andorno reflects upon the new questions which emerge due to genetic research.18 Oreste Pollicino has the view that something which is not currently guaranteed under other legal systems, namely the possibility to protect citizens against potential backsliding by public authorities, is a justification for the claim that access to the Internet can be labelled as a new human right.19 The fourth origin comes from technological and scientific developments. Brems predicts that the appearance of artificial wombs will result in the solidification of a human right of access to (artificial) gestational surrogacy, at least for those for whom this is the only way to reproduce genetically.20 Tomasz Pietrzykowski points out that recent research has discovered the complexity of animal interactions and sophisticated patterns of behaviour, thus leading to a change in social attitudes.21 Andorno reflects upon the advances in genetic rights as a consequence of scientific and technological developments.22 Present-day practices resulting from treatments such as IVF and gestational surrogacy need to be reflected in human rights law, according to Mindy Roseman.23 The fifth origin is related to the conceptualisation of moral and social values. Different from the previous four purely utilitarian origins, a conceptual side also exists. Pietrzykowski indicates that animal rights arise out of a moral discourse.24 Kothari demonstrates that there are social reasons for the development of the right to adequate housing and land.25 Roseman argues that reconceptualising infertility as a disabling status having biomedical and social/structural causes, coupled with more inclusive norms surrounding family formation, has the potential to recast the human rights obligations of states.26 Mihăescu-Evans points to the interpretation of existing human rights principles, such as the principle of care.27 Jérémie Gilbert writes that the current global situation ignores the social, cultural and spiritual importance of land rights.28 Danwood Chirwa draws from the studies revealing that more than a billion people do not have access to water, and 2.3 billion suffer from water-related illnesses, the cause of the moral duty to recognise the right to water as a human right.29 Special attention is given by many authors to the notion of dignity, which is viewed as a source of extending the circle of human rights. Simon Rice draws the right to access to law from the 16 17 18

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J. Sándor, in this volume, pp. 356f. D. Stewart, in this volume, pp. 439f. For example:  under what conditions should personal genetic information be obtained, stored and disclosed? Do people have the right not to know their predispositions to genetically related diseases? Andorno, in this volume, p. 335. O. Pollicino, in this volume, p. 271. Brems, in this volume, p. 332. T. Pietrzykowski, in this volume, pp. 243f. Andorno, in this volume, p. 335. M. J. Roseman, in this volume, p. 313. Pietrzykowski, in this volume, p. 243. Kothari, in this volume, p. 85. Roseman, in this volume, p. 314. Mihăescu-Evans, in this volume, p. 508. J. Gilbert, in this volume, p. 99. D. M. Chirwa, in this volume, p. 63.

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field of human dignity.30 Thomas Douglas conceptualises the right to bodily integrity and sees that this is derived from the notion of bodily dignity.31 Andorno mentions that the notion of human dignity has the potential to help identify claims that deserve to be recognised as human rights.32 The sixth origin is purely intellectual and philosophical, and thereby, in contrast with the previous origins, is only conceptual. Chirwa writes that the right to water has a philosophical basis – the understanding that resources on earth are meant for humanity.33 A specific case is that of the right to mental integrity, which seems to stem from the original intellectual contemplation of the scholar advancing the claim for such a new human right, as seen in the approach of Jan-Christoph Bublitz.34 2.2.2 The Justification of New Human Rights in Response to Inadequate Protection All the new human rights discussed in this collection can be traced to some uncontested, globally accepted and long-standing human right norm or multiple norms in conjunction, which can thus be considered an overarching conceptual framework for the emergence of any new human rights claim. The new human right either strengthens a specific aspect of the established human right to the degree that its separation as a new human right is justified, or the articulation of a new human right is due to novel challenges or threats which contemporary societies are facing, and advanced on the basis of some generally accepted international human rights law principle.35 The following examples illustrate this observation. Sabine Michalowski writes that Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is interpreted as being too narrow to provide comprehensive protection for the human mind.36 Bublitz links the right to mental integrity to Article 8 of the ECHR37 and to the right to be left alone.38 Gilbert argues that land rights emerge from the recognition of the right to a certain standard of living.39 Mégret connects the right to consular protection to the right to freedom from arbitrary detention.40 Mihăescu-Evans ties the right to administrative justice to the right to an effective remedy.41 Holning Lau writes that the right to gender recognition can be derived from four rights: personal autonomy, informational privacy, health and bodily integrity.42 Rice connects the right of access to law to the emerging right of access to information.43 Günther Handl points out that while recognising the 30 31 32 33 34 35

36 37 38 39 40 41 42 43

S. Rice, in this volume, p. 541. T. Douglas, in this volume, p. 378. Andorno, in this volume, p. 336. Chirwa, in this volume, pp. 58ff. J.-C. Bublitz, in this volume, pp. 398ff. For example, Andorno shows that new socioeconomic factors and technological developments may create new threats to basic human goods and interests – Andorno, in this volume, p. 337. Pollicino indicates that the Internet raises new risks to fundamental rights protection – Pollicino, in this volume, p. 272. Implication can also follow from several constituent rights. For example, Thomas Douglas writes that the concept of the right to bodily integrity is implied by the right to bodily integrity, bodily ownership and bodily autonomy – Douglas, in this volume, p. 379. Likewise, A. M. Viens argues that the right to bodily integrity is understood as an implied right – A. M. Viens, in this volume, pp. 364f. S. Michalowski, in this volume, p. 405. Bublitz, in this volume, p. 388. Ibid., p. 396. Gilbert, in this volume, pp. 99f. Mégret, in this volume, p. 455. Mihăescu-Evans, in this volume, p. 509. H. Lau, in this volume, p. 194. Rice, in this volume, p. 549.

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difficulties associated with immediate implementation, proponents locate a substantive environmental right among economic, social and cultural rights.44 Janneke Gerards shows how most, if not all, aspects of the right to access to law are already covered by broadly accepted principles or international law provisions.45 She writes that both the control and regulatory aspect and the facilitating aspect of the right of access to law form part of several human rights.46 Kothari makes the case that the right to adequate housing and land is recognised as part of the right to an adequate standard of living.47 McKay says that it is now common to classify indigenous rights as collective rights that are grounded in and operate within the framework of the right to selfdetermination.48 Brems mentions that at the Cairo World Conference 1994, a strategic choice was made not to claim that sexual and reproductive rights are new human rights, but rather that they are/should be read into existing human rights.49 These examples suffice to demonstrate the connection of new human rights claims with established and recognised human rights. Consequently, the next step is to ask whether the approach that says only a new stand-alone human right can provide the adequate protection which is not achievable through broadening the scope of or simply interpreting the respective established right is justified. The reason for advancing a new human rights claim is due to the opinion, either theoretical or emerging via explication, that established human rights are either not capable of providing comprehensive protection for a specific social value or interest, or that the practice of implementation of the established human right leaves certain vulnerable groups without a level of protection that is comparable to that of non-vulnerable groups: that is, society at large. We are sometimes told that the emergence of a new human right is necessary to secure sufficient protection for some concrete value, counter a specific threat or secure the rights of vulnerable groups. New human rights can change people’s minds and values, writes Brems as an abstract contemplation.50 However, none of the chapters in the present collection contain evidence that the recognition of a new human right, in addition to explicitly placing certain social values into the framework of established human rights, is actually capable of achieving a higher degree of protection for the respective social value. It is rather the process of articulation, presenting various contesting arguments and using the new human rights claim as an advocacy tool that may lead to increased protection. There are two distinct categories of new human rights claims. First, there are new human rights claims connected with the incapability of the discursive practice of established rights to provide sufficient protection to certain groups. The aspect of novelty lies in the understanding that the new human rights claim will be capable of doing so. Dinah Shelton indicates that all special texts of indigenous rights expressly recognise that every indigenous person enjoys the civil, political, economic, social and cultural rights guaranteed to all individuals,51 and this is due to the advancement of the claim of indigenous rights. Lau writes that protecting LGBT people from violence and discrimination does not require the creation of a new set of LGBT-specific rights, nor does it require the establishment of new international human rights standards, but simply the application of existing rights without discrimination of LGBT people.52 Sexual 44 45 46 47 48 49 50 51 52

G. Handl, in this volume, p. 145. J. Gerards, in this volume, p. 559. Ibid., p. 556. Kothari, in this volume, pp. 81f. McKay, in this volume, p. 236. Brems, in this volume, p. 328. Ibid., p. 330. D. Shelton, in this volume, p. 224. Lau, in this volume, p. 193.

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orientation and gender identity rights are only new in the sense that they are newly recognised aspects of existing rights, Lau adds.53 Pajuste states that what is new and novel regarding the rights of the elderly is the focus on the issues that the elderly face and the shift in thinking from a policy-oriented approach to a rights-oriented approach.54 Brems argues that the right of access to gestational surrogacy would be a new human right of a specific nature, claimed and exercised by a very limited number of people.55 Alternatively, she writes, this could be brought under the right to reproduce or found a family, or the right to health.56 Roseman concurs by pointing out that since the data indicates that only a small portion of births resulting from ART (assisted reproductive technology) used gestational surrogacy, this would be a right applicable to a small circle.57 Gilbert asks whether land rights are to be accorded only to indigenous people, smallscale farmers and rural women.58 Humberto Utillano reviews the Inter-American Convention on Protecting the Human Rights of Older Persons and writes in reference to novel aspects that recognition of the specific needs of the elderly acknowledges the necessity of a human rights approach; it consecrates specific and general obligations.59 These new human rights are not applicable universally, but can be claimed by the groups in need of enhanced protection. This means that the level of the universality of these rights is lower than that of established rights. We can label this the ‘universality decrease thesis’. Second, there are new human rights claims which are meant to enhance some specific aspect of an established human right. Gerards concurs, and says that most new human rights are refinements of existing rights which somehow have come to be regarded as deserving protection in their own right.60 Chirwa points to the close nexus which has to exist between a new human right and the right it is derived from.61 Gilbert concludes that the right to land develops in the shadow of other human rights, such as the right to food, housing and property.62 At any point in time, the discourse around the novel aspects of new human rights may or may not grow to overshadow the established capabilities usually associated with traditional human rights, leading to the novel aspect ‘boiling over’ and the new human right being formed, or leading to the expanded interpretation of the established human right. There may also be a related need to formulate specific governmental obligations for the protection of this new human rights claim, since the existing obligations originating from positive or soft law may not meet the standard requirements of effective protection. One example is the extension of the government obligation regarding human rights protection at the national level into the international arena, as is the case with the right to consular protection.63 At the new human rights conference in Tallinn in September 2017,64 I predicted that whatever the result – whether the new human rights claim is sufficiently justified or rejected – at some point the discourse around the established human right returns to a ‘normal’ status and

53 54 55 56 57 58 59 60 61 62 63 64

Ibid. Pajuste, in this volume, p. 189. Brems, in this volume, p. 327. Ibid. Roseman, in this volume, p. 318. Gilbert, in this volume, pp. 100f. L. H. Toro Utillano, in this volume, pp. 180f. Gerards, in this volume, p. 555. Chirwa, in this volume, p. 56. Gilbert, in this volume, p. 103. Mégret, in this volume, p. 458. The new human rights conference held at Tallinn University, where the research leading to the current book was presented and discussed by the majority of authors.

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the rhetorical elevation disappears. This may take years or decades. Having studied the chapters in the present collection, I see no evidence to support this prediction. The process of contestation is ongoing in respect of all new human rights claims. Jack Donnelly, writing some thirty years prior to this chapter, termed the evolution of human rights as ‘gradual and largely incremental’.65 The evidence presented in this book fully supports this proposition. There can easily be a misunderstanding that by definition a new human right necessarily means a self-standing human right. From the epistemic perspective, even under ideal conditions a new human right cannot immediately establish itself as such a self-standing right. Even if it has not yet established itself as a self-standing right, we can still speak of a new human right, and can add the qualification ‘under the process of contestation’. Such a process of contestation has led many authors in the present collection to conclude that the case of a concrete new human right as a self-standing autonomous human right is not made, at least for the time being. There is really no such thing as bodily integrity per se, writes Viens.66 Samantha Besson argues that there should be no human right to democracy, as both human rights and democracy are needed to protect individual equality.67 Roseman concludes that, as a formal matter, there is no explicit recognition in any international or regional human rights treaty or judicial ruling stating that anyone has a positive right to contract with, or provide services, as a surrogate.68 Rice writes that the right of access to the law would be available only when necessary to give effect to a substantive right.69 Pollicino refers to the implication that international law looks at access to the Internet not as an autonomous new right, but as a part of the right to the participation of all citizens in the information society.70 All new human rights claims discussed in the present collection are more concrete than established human rights. This is sufficient evidence to conclude that, consequently, the level of abstractness of new human rights claims is lower than the level of abstractness of their ‘parent’ rights. We can identify this as the ‘decrease of the abstractness thesis’ in new human rights development. The previous discussion leads us directly to generalise that the process of new human rights development has two directions:  either towards the decrease of universality, as is the case with the rights for specific groups, or towards the decrease of abstractness, as is the case with rights derived from or being implied by established rights. We can term this the ‘decrease in abstractness and universality thesis’. Such a process goes hand in hand with the increase in the level of concreteness and utility of new human rights. The ontic aspect of new human rights development can be illustrated by the graph in Figure 2.1. With the increase of the aspect of individuality, at some point the element of universality connected by definition with a human right is lost. Likewise, with the increase of concreteness, at some point the new human rights claim loses the aspect of abstractness associated by definition with any human right. The decrease of abstractness and universality do not necessarily go hand in hand. A human right can retain a strong abstract character and at the same time decrease in universality. The rights of the elderly or the rights of persons with disabilities are examples of this, since the focus is upon granting these groups of people the possibility to fully enjoy the same highly abstract rights as are enjoyed by non-elderly and non-disabled persons. And conversely, a human right can retain a high degree of universality and at the same time 65 66 67 68 69 70

J. Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 1989), p. 223. Viens, in this volume, pp. 374f. S. Besson, in this volume, p. 487. Roseman, in this volume, p. 319. Rice, in this volume, p. 554. Pollicino, in this volume, p. 265.

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Individuality

Group

HUMAN RIGHTS Universality Abstractness

Concreteness

Figure 2.1. The ontic aspect of new human rights development

decrease in abstractness. The right to bodily integrity or the right to mental integrity illustrate this proposition, since everyone can claim these rights, yet they are concrete aspects of the right to privacy. 2.2.3 The Question of Human Rights Inflation One of the main objections raised against the emergence of new human rights is that this leads to human rights inflation. If all social causes can be anchored to a new human rights claim, we can ask what remains of human rights. Andorno defines rights inflation as the process where everything that is socially desirable is labelled a human right.71 Another objection to the growth of human rights is the risk of constitutional collisions, which leads to a decrease in the protection of the rights at stake.72 Our specific matter of interest is whether the number of human rights can grow indefinitely, or whether there is, senso strictu, a closed circle of human rights and we can speak only of the more detailed articulation of long-standing rights. The proposition of rights inflation is based on the theoretical framework of the utility or practice-dependency of human rights. Philip Alston’s proposed quality control approach, where, in order for a human right to qualify as such, certain criteria have to be met, clearly represents the understanding that human rights are defined via explication only. Alston suggests that the criteria for quality control are as follows:  a new human right has to reflect a fundamentally important social value; be consistent with, but not merely repetitive of, the existing body of international human rights law; be capable of achieving a very high degree of international consensus; and be sufficiently precise as to give rise to identifiable rights and obligations.73 James Nickel74 links the justification of a new human right to its dealing with some very important good and its response to a common and serious threat to that good, as well as it being feasible in

71 72 73

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Andorno, in this volume, p. 336. Pollicino, in this volume, p. 263. P. Alston, ‘Conjuring Up New Human Rights: A Proposal for Quality Control’ (1984) 78 The American Journal of International Law 607. Many authors in the present collection rely upon Alston and Nickel’s conceptualisation regarding the matter of new human rights development. For example, Bublitz is of the view that the right to mental integrity meets Alston and Nickel’s universal appeal of novel rights criteria – Bublitz, in this volume, p. 403.

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most countries of the world.75 Brems conditions the establishment of a new human right to the threshold criterion (a human right should protect interests that are of great importance) and universality criterion (a new human right should be universally valid).76 The pursuit of this practicedependent approach to new human rights development does not exclude the possibility that the universe of human rights is endlessly growing, as it is dependent on what states can agree on and what is considered to be socially important at a given time. Under this approach a highly specific right, such as the hypothetical right of all young parents to have time off from work after the birth of a child, could qualify as a human right because it reflects an important value of strengthening the family and would in principle find support in most countries. Yet this hypothetical right is highly individual (as opposed to being universal, since it can only be applied to young parents – not everyone is young and not everyone is a parent) and concrete (as opposed to being abstract, since it relates to a very specific aspect of family life). For those reasons, it should not qualify as a self-standing human right according to the ‘decrease of abstractness and universality thesis’. The practice-dependent approach underlying the rights inflation proposition, surprisingly, can in principle be mirrored in the opposite process as well – the deflation of human rights, or the shrinking of the number of human rights, should the global community become tired of the human rights language. The ‘decrease of abstractness and universality thesis’ excludes the possibility of the endless growth of human rights. Since the levels of abstractness and universality of any human rights claim by definition cannot fall below certain degrees, it follows that the circle of human rights is not open-ended. It is visible from the graph in Figure 2.1 that an answer to the query of which new human rights could claim the status of a stand-alone human right is relative and depends on where one draws the cut-off on the lines of abstractness and universality. This graph logically supposes that once a new human right has been derived from an existing right, subsequent derivation from the derivate may lead to the loss of the status of human right, provided that the new derivate does not retain the same degree of abstractness and/or universality as the right it is derived from.

2.3 Contestation – the Epistemic Dimension The claims of new human rights, after being articulated and having gained certain theoretical justification, move to the stage of contestation from the political establishment and academia. This means that the justification of a new human right is countered by arguments why such a claim should not acquire the status of a stand-alone new human right. The following examples from the present collection illustrate this point. Mégret writes that theoretically there is no good reason why consular assistance needs to be a specific human right.77 Brems points to the ongoing claims and discussion, but concludes that we cannot say that under international law the right of access to gestational surrogacy exists.78 Besson argues that if we ask someone about the human right to democracy, the answer would be just as ambiguous as it was thirty years ago.79 Pollicino makes the case for how the debate among

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J. Nickel, ‘Human Rights’, in E. N. Zalta (ed.), Standord Encyclopedia of Philosophy, 2014, available at https://plato .stanford.edu/entries/rights-human/. Brems, in this volume, p. 329. Mégret, in this volume, p. 454. Brems, in this volume, p. 326. Besson, in this volume, p. 484.

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scholars regarding the right to internet access is ‘polluted’ by the rhetoric of human rights.80 Roseman shows that courts and commentators have scoffed at the notion that there is any human right to a child.81 Sándor shows that there are two divergent positions regarding genetic rights.82 Boysen claims that it is difficult to find a normative argument for democracy.83 Handl explains that environmental human rights are fraught with difficult questions.84 Mihăescu-Evans shows the political opposition to the right to administrative justice.85 Pietrzykowski writes about the ongoing philosophical and legal discourse about the recognition of animal rights.86 Chirwa tells us about the long, difficult process of obtaining formal affirmation of the right to water in legal instruments, viewing it as part of a constitutional resistance to socio-economic rights.87 Pajuste points to the economic burden which has led states to contest the recognition of the rights of the elderly as a stand-alone right.88 Kothari shows that there are widespread state practices opposed to the right to adequate housing.89 Shelton demonstrates that, since the founding of the UN, debates about the relationship between individual human rights and claims of collective rights have often been contentious, and some states continue to reject the very concept of group rights.90 Viens argues that the right to bodily integrity remains a contested concept.91 Many authors in the present collection refrain from suggesting that the definition of a new human right means that this right is in the process of ‘breaking away’ or has ‘broken away’ from an established right and is claiming an autonomous place in the family of human rights. However, a new human right – which is the generalisation from the observations of new human rights in this collection – has the capability to provide protection which cannot be achieved via progressive interpretation and expansion of an already existing human right. The capability criterion is one of degree. A substantial degree means that without the new human right becoming autonomously recognised, the capabilities usually associated with the established human right can become marginalised against the novel challenges facing it. This usually leads to the articulation and subsequent gradual recognition of a new autonomous human right. A minor degree means that the claim of a new human right remains a rhetorical statement without leading to this new right’s autonomous recognition, but the scope of the existing human right is broadened. The aspect of rhetoric is not the subject of this chapter, but it suffices to note that the rhetoric around a new human right often ignores conceptual considerations.92 The process of contestation can exist endlessly. The phenomenon of historical pedigree associated with the development of various rights supports this observation. Gilbert shows that the difficulty of recognising land rights is based on the normative assumption that land is property.93 Shelton demonstrates the longevity of debates on how to conceptualise and implement

80 81 82 83 84 85 86 87 88 89 90 91 92 93

Pollicino, in this volume, p. 268. Roseman, in this volume, p. 324. Sándor, in this volume, p. 350. Boysen, in this volume, pp. 475f. Handl, in this volume, p. 138. Mihăescu-Evans, in this volume, p. 511. Pietrzykowski, in this volume, p. 244. Chirwa, in this volume, pp. 57f., 66. Pajuste, in this volume, p. 186. Kothari, in this volume, pp. 83f. Shelton, in this volume, p. 224. Viens, in this volume, p. 374. Ibid., pp. 363f. Gilbert, in this volume, p. 99.

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the rights of indigenous people.94 Articulation of the right to adequate housing and land has been on the agenda of the United Nations throughout the past twenty years, writes Kothari.95 The process of the intellectual and political contestation of a new human rights claim may lead to the fragmentation of human rights discursive practice regarding the rights at stake. Mégret writes that the right to consular protection would be counter to the existing human rights framework, since it challenges the premise that human rights are implemented domestically.96 Douglas predicts that in the context of the development of the right to privacy, this right will be fragmented in reference to bodily and non-bodily aspects.97 Mégret  also warns about the possibility that the emergence of new human rights may unravel the very fabric of the classical international human rights law system.98 The rights of the elderly are scattered in regional and functional specialist instruments, which makes their realisation difficult, writes Pajuste.99 Recent scientific research has scattered the clear-cut threshold between persons and non-persons,100 as becomes evident from the chapter by Pietrzykowski. Chirwa shows that in the Inter-American system the right to water is not expressly recognised, but in Europe it is derived from socioeconomic rights.101 Stewart demonstrates how the right to consular protection is growing slowly, primarily through judicial interpretation.102 Mihăescu-Evans shows that in Africa the right to good administration is recognised by the courts as a new human right, but in Europe it is a repackaging of existing practice.103 The process of contestation, even if it does not lead to the justification of a novel stand-alone human right, obtains at least to two outcomes. First, it enables more profound articulation of the scope and meaning of an existing human right, with a special view towards its applicability in novel circumstances. Besson concurs by saying that we would be better off endorsing the existing international customary principle of democracy without looking for a corresponding legal human right that cannot be morally justified.104 According to Michalowski’s view, there is no sufficient justification for the creation of a new right as long as the relevant rights and interests are already sufficiently protected through existing rights.105 There is also an objection to the justification of a novel human right that is related to the difficulties which may be associated with its implementation. Gerards argues that if a new human right is accepted but is not a cognisable or discernible part of international or national law, it will be difficult for individuals to know they can claim such a right.106 The second outcome is related to the development of the doctrinal side of human rights law. Despite the value-added element of human rights development process,107 the case of a new human right should be conceptually fully justified before one can advance the claim that a new human right can achieve the status of a stand-alone human right among established

Shelton, in this volume, p. 217. Kothari, in this volume, p. 81. 96 Mégret, in this volume, pp. 456, 458. 97 Douglas, in this volume, p. 383. 98 Mégret, in this volume, p. 460. 99 Pajuste, in this volume, p. 186. 100 Pietrzykowski, in this volume, pp. 250f. 101 Chirwa, in this volume, p. 64. 102 Stewart, in this volume, p. 440. 103 Mihăescu-Evans, in this volume, pp. 511f. 104 Besson, in this volume, p. 481. 105 Michalowski, in this volume, p. 409. 106 Gerards, in this volume, p. 556. 107 See for example, Roseman, in this volume, pp. 324f. 94 95

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human rights. Michalowski expresses this point in relation to the importance of clarity. She writes that lack of clarity seems to speak against the creation of a new human right rather than in its favour.108

2.4 Conclusion This chapter has coined two theses regarding the development of new human rights. ‘The inadequacy of protection thesis’ says that the main reason for the advancement of a new human rights claim is the incapability of established human rights to provide adequate protection for certain vulnerable or marginalised groups in comparison with others, or that novel contemporary conditions challenge the capability of an established human right to provide sufficient protection for an important social value. There are six origins for new human rights claims: realisation of some political agenda, pressure from civil society groups, scientific and technological developments, realisation that the existing legal framework does not allow the protection of some aspect of an important social value, conceptualisation of moral and social values, and finally intellectual reasons. The majority of origins of new human rights claims are thus utilitarian. There are two main groups of new human rights claims, the first being related to the enhanced protection of certain groups using existing human rights, and the second being related to the derivation from or implication of new human rights from established stand-alone human rights. The first process is characterised by the decrease of the universality of established human rights, and the second by the decrease of the level of abstractness of the respective new human rights claim. This is termed ‘the decrease in universality and abstractness thesis’, which, inter alia, leads to the rejection of the proposition that the universe of human rights can grow endlessly. Because of the elements of abstractness and universality required by definition in all human rights, and since the evidence shows that these elements are decreasing in new human rights claims, the elements of universality and abstractness cannot diminish indefinitely, and at some point new claims cannot surpass the threshold of a human right. Consequently, the process of human rights inflation has limits. After the idea of a novel human right has reached certain academic and discursive intensity, such a claim enters the stage of contestation. Evidence from the present collection reveals the longevity of such a process. Likewise, there is no evidence that the recognition of a new human right claim as a self-standing right within the family of established human rights will lead to a higher degree of protection of the respective rights-holders. Consequently, it is the process of new human rights articulation and contestation which can produce the utilitarian effect of increased protection, and not the result of the recognition of the new right. Overall, there seems a hesitance on behalf of the authors of this collection to sign up to the statement of justification that the particular human rights discussed here merit characterisation as new autonomous human rights.

108

Michalowski, in this volume, p. 410.

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3 Rhetoric of Rights A Topical Perspective on the Functions of Claiming a ‘Human Right to …’ Andreas von Arnauld and Jens T. Theilen

3.1 Introduction: Why Rhetorics Matter Within the last twenty or so years we have witnessed the introduction of a sizeable number of ‘new’ human rights into international law – and many more claims to ‘new’ human rights have been made. So many, indeed, that the danger of ‘human rights inflation’ has become a spectre that has haunted the debate for quite some time now.1 In his seminal article of 1984, Philip Alston had already attempted to prevent such inflation by calling for ‘quality control’, with the United Nations General Assembly as the institutional gatekeeper.2 Yet in practice the flood has not been tamed.3 Apart from the rights covered in this volume, a broad range of ‘human rights to …’ have been proposed even over the course of only the last few years: a human right to a green future,4 rights to remain natural, to be inefficient or to disconnect5 – or, conversely, a right not to be left alone6 – and a human right to exist without a physical or psychological threat from above,7 to name but a few. A recent publication even argued for a ‘right to be loved’.8 Looking at these examples, there seems to be something inherently appealing in calling for a ‘human right to …’, or even stipulating its existence de lege lata. In this chapter we are interested in the rhetorical dimension of this phenomenon. In human rights theory and literature ‘rhetoric’ is often used in a pejorative sense.9 Human rights are

1

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See e.g. J. W. Nickel, Making Sense of Human Rights (Malden:  Blackwell, 2007), p.  96; G. Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford:  Oxford University Press, 2007), p.  129; M. Ignatieff, Human Rights as Politics and Idolatry (Princeton: Princeton University Press, 2001), p. 90. P. Alston, ‘Conjuring Up New Human Rights:  A Proposal for Quality Control’ (1984) 78 American Journal of International Law 607. Nor is it likely to be: see C. Bob, ‘Introduction: Fighting for New Rights’, in Clifford Bob (ed.), The International Struggle for New Human Rights (Philadelphia: University of Pennsylvania Press, 2009), p. 11. R. P. Hiskes, The Human Right to a Green Future:  Environmental Rights and Intergenerational Justice (Cambridge: Cambridge University Press, 2009). G. Leonhard, Technology vs. Humanity:  The Coming Clash Between Man and Machine (London:  Fast Future Publishing, 2016), p. 140. L. Grans, ‘A Right Not to Be Left Alone – Utilising the Right to Private Life to Prevent Honour-related Violence’ (2016) 85 Nordic Journal of International Law 169. N. Grief et al., ‘The Airspace Tribunal: Towards a New Human Right to Protect the Freedom to Exist without a Physical or Psychological Threat From Above’ (2018) European Human Rights Law Review 201. M. S. Liao, The Right to Be Loved (Oxford: Oxford University Press, 2015), on children’s rights. There are exceptions, though. For more nuanced approaches, see e.g. W. S. Hesford, Spectacular Rhetorics: Human Rights Visions, Recognitions, Feminisms (Durham, NC and London:  Duke University Press, 2011); A. Lyon, Deliberative Acts: Democracy, Rhetoric, and Rights (University Park, PA: Pennsylvania State University Press, 2013);

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sometimes derided as ‘mere rhetorical device[s]’,10 ‘empty rhetoric’11 or, famously, ‘rhetorical nonsense, nonsense upon stilts’,12 and the need to transform rights into reality is a familiar trope. There is, however, more to rhetoric than its use as an indicator of the gap between human rights pronouncements and their implementation. This more positive, substantial notion of rhetoric relates to the question of how normative standards are established in the first place, and its implications can best be studied by reference to ‘new’ human rights, i.e. those cases in which an issue not previously conceived of as a human right, or at least not as a free-standing right, is newly claimed as a ‘human right to …’. What is the communicative added value of phrasing a claim in this way, rather than speaking of it in terms of human rights more generally, or by reference to normative languages other than human rights entirely? Our starting assumption is that the way we phrase certain ideas helps to shape concepts and discourse.13 Rhetoric therefore serves central functions in the triangulation of concepts, language and society. Thus, the rhetoric of human rights is by no means detached from their development within international law as a global normative practice. While it has been suggested that the utility of a rights perspective in certain contested cases is ‘rhetorical rather than juridical’,14 or that the ‘normative implications’ of a right must be distinguished from its use as a ‘rhetorical tool’,15 we will argue that these two dimensions should be viewed in tandem. We will do this against the theoretical background of a topical analysis of law, considering human rights discourse as essentially ‘topical’. Section 3.2 will introduce this framework, and Section 3.3 will build on this to discuss various functions of claiming a ‘human right to …’. Two caveats should be made at the outset. First, what we attempt here is a contribution to a communication theory of human rights. In light of this, our position differs from most scholarship on ‘new’ human rights in that we are not taking a normative stand: we will not judge whether any given ‘new’ rights claim is well founded or not. While we return to the normative perspective for a brief evaluation in Section 3.4, we are primarily interested in the functions and functioning of the use of human rights language: our standpoint in that regard is what one might call that of ‘non-participating observers’. Second, constraints of space require us to conduct this analysis at a high level of generality. We will point towards different forms of rhetoric, different actors and different institutional settings throughout, but more specific studies would be necessary to properly map their particularities. Our implicit focus will be on human rights claims by norm entrepreneurs from civil society, as reflected within (primarily legal) academic commentary.

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E. Doxtader, ‘The Rhetorical Question of Human Rights – A Preface’ (2010) 96 Quarterly Journal of Speech 353. More generally on law as a form of rhetoric (although it may mask its own rhetorical nature), see e.g. K. Sobota, Sachlichkeit, Rhetorische Kunst der Juristen (Frankfurt: Peter Lang, 1990); G. B. Wetlaufer, ‘Rhetoric and Its Denial in Legal Discourse’ (1990) 76 Virginia Law Review 1545. S. Marks, ‘The Human Right to Development:  Between Rhetoric and Reality’ (2004) 17 Harvard Human Rights Journal 137 at 167. For criticism, see Nickel, Making Sense of Human Rights, p. 185. J. Bentham, ‘Nonsense upon Stilts, or Pandora’s Box Opened’, in P. Schofield, C. Pease-Watkins and C. Blamires (eds.), The Collected Works of Jeremy Bentham (Oxford: Oxford University Press, 2002), p. 330. M. A. Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press, 1991), p. 11. A. Boyle, ‘Human Rights and the Environment: Where Next?’, in B. Boer (ed.), Environmental Law Dimensions of Human Rights (Oxford: Oxford University Press, 2015), p. 209. O. Pollicino, in this volume, p. 263; see also R. Andorno, in this volume, p. 348.

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3.2 A Topical Approach to Human Rights Discourse By characterising rights discourse as ‘topical’, we link our study to the school of rhetorical analysis of law established by Theodor Viehweg.16 Drawing on Aristotle, he reconceptualised legal argumentation as the art of persuasion, based on logos (persuasion by means of rational argumentation), pathos (persuasion by appeal to emotion) and ethos (presenting the speaker as credible).17 Viehweg, like Chaïm Perelman and Lucie Olbrechts-Tyteca in their more or less contemporaneous studies on ‘New Rhetoric’,18 referred primarily to the application of statutory norms and principles. Coming from a different angle, Martha Finnemore and Kathryn Sikkink have identified persuasion as the central element also in the emergence of norms and thus in the context of norm creation.19 This underlines that differentiating between norm application and creation is a matter of perspective and usually connects more to the level of generality of a norm than to the degree of creativity involved. Human rights discourse in general can therefore be classified as a form of rhetoric in Viehweg’s sense.20 In his rhetorical analysis, Viehweg focuses on the role of topoi in legal argumentation  – ‘maxims and long-standing principles and presumptions’21 or ‘concepts, subjects, or maxims that are widely shared’.22 Such topoi exist at various levels. On the highest level of generality, we have topoi like the ‘bonum commune’ or ‘responsibility’ as fundamental concepts of any (Western) legal order. Within the field of human rights, ‘proportionality’, ‘core of rights’ or ‘positive obligations’ are topoi that structure argumentation. But particular rights and legal principles, such as ‘human dignity’23 or ‘ne bis in idem’, can also take the form of a topos in broader legal argumentation. The particular features of rhetorical topoi have been further specified by Lothar Bornscheuer. He defines a topos as a ‘focal point of a horizon of meaning’24 and identifies four characteristics: habituality, potentiality, intentionality and symbolicity.25 Habituality refers to topoi as ‘commonplaces’, concepts and tropes which are grounded in communicative practices. Taking up a topos links the argumentation to shared understandings and thus constitutes a strategic move in the language-game of persuasion. By identifying human rights in general and also specific human rights as topoi in legal discourse, one can capture their well-established status within international law and political morality:26 whoever claims

16 17

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T. Viehweg, Topik und Jurisprudenz, 5th ed. (Munich: C. H. Beck, 1974). See Aristotle, Rhetoric, Book I, Part 2; see also F. Pinho, ‘On Logos, Pathos and Ethos in Judicial Argumentation’, in L. Huppes-Cluysenaer and N. M. M. S. Coelho (eds.), Aristotle on Emotions in Law and Politics (Cham: Springer, 2018), pp. 133–154. C. Perelman and L. Olbrechts-Tyteca, The New Rhetoric: A Treatise on Argument, trans. J. Wilkinson and P. Weaver (Notre Dame and London: Notre Dame Press, 1969). M. Finnemore and K. Sikkink, ‘International Norm Dynamics and Political Change’ (1998) 52 International Organization 887 at 895. In this vein, see also T. Campbell, ‘Introduction: Realizing Human Rights’, in T. Campbell et al. (eds.), Human Rights: From Rhetoric to Reality (Oxford: Basil Blackwell, 1986), pp. 1–2. N. MacCormick, Rhetoric and the Rule of Law:  A Theory of Legal Reasoning (Oxford:  Oxford University Press, 2005), p. 18. J. M. Balkin, ‘A Night in the Topics: The Reason of Legal Rhetoric and the Rhetoric of Legal Reason’, in P. Brooks and P. Gewirtz (eds.), From Law’s Stories: Narrative and Rhetoric in the Law (New Haven: Yale University Press, 1996), p. 212. Pinho, ‘On Logos, Pathos and Ethos in Judicial Argumentation’. L. Bornscheuer, Topik: Zur Struktur der gesellschaftlichen Einbildungskraft (Frankfurt: Suhrkamp, 1976), p. 105; all translations in what follows are our own. Ibid., pp. 95–108 with a succinct summary at p. 107. See further below, Section 3.3.

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a ‘human right to …’ will be understood as taking up the topos of human rights with all its connotations. This does not, however, imply general uniformity as to the understanding of human rights:  ‘habitual ways of thinking and speaking about rights’ may differ, and indeed form different ‘dialect[s] in a universal language of rights’.27 Because ‘persuasiveness is audiencerelative’,28 topoi only work as a means to persuade insofar as they are shared between speaker and audience. Much depends on context, and within the ‘many worlds of human rights’29 across disciplines and borders – within the ‘global intermixture of vocabularies, actors, and institutions’30 – or for that matter across different legal instruments, there will be different understandings and points of emphasis. These points about the variety of understandings gathered under the umbrella of the topos of ‘human rights’ take us to the second characteristic of topoi: their ‘polyvalent interpretability’, described by Bornscheuer as their potentiality.31 Even on the basis of a shared understanding in principle, a topos is not a clearly defined legal term. Rather, it is a concept with fuzzy boundaries that is all but fully determined. The openness to interpretation implied by the potentiality of topoi is also what makes them the perfect tool for invention, the skill of ‘discovering and formulating arguments’.32 Because such arguments are usually geared towards a specific problem to be solved, this brings us, in turn, to the third characteristic identified by Bornscheuer:  the intentionality of topoi which, in a sense, results from and also allows for the combination of their habituality and potentiality.33 Because topoi are grounded in common communicative practices while also being open to interpretation, they must be applied to specific problems as intentional speech acts  – which, in turn, links them substantially to the objective of persuasion and gives them their meaning within communicative practices. As Bornscheuer puts it, without their habituality topoi would be incapable of generating situational meaning; without their openness to differing interpretations it would not be possible to maintain their habitual quality; and without their intentional application they would become ‘merely’ clichés rather than generating ‘dialogicallydialectically reached solutions to problems’.34 The interplay between habituality, potentiality and intentionality is thus what makes topoi particularly helpful in addressing new problems – an aspect that becomes especially clear when ‘new’ human rights are at issue. An established topos (e.g. the right to privacy or the right to data protection) can be relied on as a common starting point in legal argument (habituality). It is not devoid of meaning, but rather unfolds argumentative force when applied to a certain problem (e.g. the potentially universal accessibility of personal information on the Internet) to argue that there is or should be agreement about how to solve it (intentionality). Of course, the fuzziness of the topos (potentiality) and the invocation of other topoi allow for disagreement on

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Glendon, Rights Talk, pp. 7 and 15. MacCormick, Rhetoric and the Rule of Law, p. 19, referring to Perelman and Olbrechts-Tyteca. U. Baxi, ‘Politics of Reading Human Rights: Inclusion and Exclusion within the Production of Human Rights’, in S. Meckled-García and B. Çalı (eds.), The Legalization of Human Rights: Multidisciplinary Perspectives on Human Rights and Human Rights Law (London and New York: Routledge, 2006), p. 190. F. F. Hoffmann, ‘ “Shooting into the Dark”: Toward a Pragmatic Theory of Human Rights (Activism)’ (2006) 41 Texas International Law Journal 403 at 405. Bornscheuer, Topik, p. 105. Balkin, ‘A Night in the Topics’, p. 212. Bornscheuer, Topik, pp. 100–102. Ibid., p. 101.

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this point (e.g. the exact content of the rights to privacy and data protection, the relative weight of countervailing rights, etc.) – but this is the essence of ‘the arguable character of law’.35 Finally, the fourth characteristic of topoi described by Bornscheuer is their symbolicity. Every topos can be fixed as a kind of set phrase, sometimes a fascination-inducing ‘incantation’ exerting an appeal bordering on the magical.36 This aspect, in particular, makes a topical analysis interesting in the context of human rights. For one thing, human rights as a whole are sometimes said (for better or worse) to retain an almost mythical aspect – not for nothing have they been described as ‘the major article of faith of a secular culture that fears it believes in nothing else’37 or as ‘the god that did not fail while other political ideologies did’.38 In addition, and this takes us back to the subject of ‘new’ rights, the formulation of a ‘human right to …’ could be said to embody the element of symbolicity with particular clarity. To return to the example just given: debates about the application of fundamental rights in the context of accessing information on the Internet are now commonly framed by reference to the so-called ‘right to be forgotten’. This moniker is not particularly apt (one is not literally ‘forgotten’ if the link to a search result is removed), but it is precisely the kind of evocative phrase mentioned by Bornscheuer.39 The topical approach to law has been accused of replacing legal certainty and the rule of law through arbitrariness, and legal substance through rhetorical surface.40 This accusation is already flawed in that it seems to understand topoi as a theory of how legal argumentation should work, instead of an analysis of how it actually does work.41 Understanding human rights as topoi in legal, but also political and moral, discourse makes it possible to see them, in the words of Jack Balkin, as ‘heuristics; they provide a roadmap, or starting point, for the discussion of problems and the resolution of difficulties. They are both a method of problem recognition and a means of problem solution.’42 Especially in the field of ‘new’ human rights claims, the formation of a topos is an important step in the phase of norm emergence. Even before formal recognition takes place43 (or, according to Finnemore and Sikkink, a ‘tipping point’ in support among states is reached and the ‘norm cascade’ starts44), a shared understanding is developed of what is meant by, e.g., a ‘right to be forgotten’ or a ‘right to truth’, thus at the same time emancipating the new ‘right’ from established topoi like ‘privacy’ and ‘informational self-determination’, or ‘right to life’ and ‘right to liberty’. Understanding human rights as topoi thus makes it possible to view them ‘as a language for negotiation’45 which leaves room for innovation, dialectal variations 35

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MacCormick, Rhetoric and the Rule of Law, p. 14. The indeterminacy of law is emphasised by critical approaches which may connect with a rhetorical and specifically a topical perspective via a common concern with legal semiotics:  see Balkin, ‘A Night in the Topics’, p.  218; or, e.g., D. Kennedy, A Critique of Adjudication (fin de siècle) (Cambridge, MA: Harvard University Press, 1997), p. 137 on topoi-resembling ‘argument-bites’. Bornscheuer, Topik, p.  103. Interestingly, Alston also uses magical imagery in describing ‘new’ rights (they are ‘conjured up’, ‘brought into existence as if by magic’), though his account seems to disregard the way in which ostensibly ‘new’ rights reconnect to and build on more established rights (i.e. the element of habituality): Alston, ‘Conjuring Up New Human Rights’, 607. Ignatieff, Human Rights as Politics and Idolatry, p. 53. S. Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Belknap Press of Harvard University Press, 2012), p. 5. See also M. Susi, in this volume, p. 297. See e.g. MacCormick, Rhetoric and the Rule of Law, p. 13 (but see also p. 28 for a more nuanced take on the rule of law). Bear in mind our introductory caveat that our approach is descriptive-analytical, not normative in itself: see above, Section 3.1. Balkin, ‘A Night in the Topics’, p. 214. See also K. von der Decken and N. Koch, in this volume, p. 8. Finnemore and Sikkink, ‘International Norm Dynamics’, pp. 901–902. G. A. Hauser, ‘The Moral Vernacular of Human Rights Discourse’ (2008) 41 Philosophy & Rhetoric 440 at 442.

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and even opposing views, but structures the debate about how to address and solve a potential human rights problem.

3.3 The Functions of Claiming a ‘Human Right to …’ Against this backdrop, we now turn to the functions of human rights claims. As stated above, rhetoric serves central functions in the triangulation of concepts, language and society; and it thus offers a helpful perspective on the way in which normative standards are established within human rights discourse. Claiming a new ‘human right to …’ involves a rhetorical move on at least two levels. First, it takes up human rights language in general, with all its habitually established connotations (the topos of human rights as such). Second, it aims to establish the ‘human right to …’ in question as a more particular topos of its own. The former move does not necessarily imply the latter: Most issues could also be framed as a human rights issue without claiming a specifically phrased ‘human right to …’ simply by interpreting more established human rights (i.e. by drawing on their potentiality). Our primary focus in what follows is to explore the added communicative value of phrasing a claim as a ‘human right to …’, for it is here that the rhetorical dimension becomes particularly visible. However, because such a claim also inevitably draws on the more general topos of human rights, many of our observations will also be of interest with regard to the use of human rights language more generally. As for now, we distinguish five functions of claiming a ‘human right to …’: an appellative function, a contesting function, a connecting function, a triggering function and a jurisgenerative function. It is important to stress that these functions are not necessarily exhaustive. They are also interrelated, i.e. we differentiate between them here primarily for heuristic reasons. In practice, most of the functions will be at play simultaneously when a rights claim is brought up and maintained. 3.3.1 The Appellative Function Perhaps the most obvious of the five functions identified here is what we call the appellative function. Raising claims for a new ‘human right to …’ serves to draw attention to certain situations which are deemed to be sufficiently unjust so as to qualify (at least in the view of the norm entrepreneurs) as a human rights issue. As Nickel puts it, in ‘the popular mind’ – the element of habituality of the language of human rights comes through here – ‘the idea of a right suggests a high priority norm that you can do something about by litigating or protesting’.46 The appellative function relates to the affective and energising element implied by the appeal to human rights – in rhetorical terms, its pathos. For a general audience, this is meant to raise awareness by ‘setting the agenda’ and ‘heightening popular consciousness’;47 rights language is used ‘as a means by which to mobilize public support’.48 For those already involved, the language of human rights may likewise aim to spur mobilisation and strengthen activist ties.49

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Nickel, Making Sense of Human Rights, p. 96. Campbell, ‘Realizing Human Rights’, p. 2. Alston, ‘Conjuring Up New Human Rights’, 608; see also D. Clément, ‘Human Rights or Social Justice? The Problem of Rights Inflation’ (2018) 22 International Journal of Human Rights 155 at 157; M. Stohl, ‘Conclusions on Norms, Institutions and Processes’, in A. Brysk and M. Stohl (eds.), Expanding Human Rights: 21st Century Norms and Governance (Cheltenham: Edward Elgar, 2017), p. 261. C. Wellman, The Proliferation of Rights: Moral Progress or Empty Rhetoric? (Boulder: Westview Press, 1999), p. 180; F. Mégret, ‘The Human Rights of Older Persons: A Growing Challenge’ (2011) 11 Human Rights Law Review 37 at 65.

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The element of pathos is, no doubt, present in some way whenever human rights are invoked: apart from making use of a language of entitlement, it conjures up powerful images,50 links the appeal at issue to the very essence of humanity and underscores the gravity of the problem that has to be addressed. Yet claiming a specific ‘human right to …’ instead of just arguing for an improvement of a legal situation in terms of human rights more generally adds not only to its visibility51 but also to the poignancy of the claim. This pathos-based ‘extra’ can explain, for example, why calling for a ‘human right to freedom from corruption’ has more rhetorical power than speaking about a state’s obligations to prevent corruption based on human rights discourse more generally. It becomes particularly clear in the common description of ‘new’ human rights, both in this volume and elsewhere, as a ‘rallying cry’52  – the appeal to rights of nature or a right to housing, for example, is more tangible as a common point of reference than other, less directly evocative formulations. Differently put: claiming a ‘human right to …’ may aim to activate the fascination-inducing appeal described above as the symbolicity of a topos. Given its connection to the mobilisation of various actors, the appellative function will be paramount during the stage of emergence of a new human rights norm.53 In this stage, the ‘new’ right may resemble what Joel Feinberg termed a ‘manifesto right’,54 referring to rights claims that are unspecified as to the duties they entail and about how and by whom they should be fulfilled. This ‘polemical term’55 – primarily aimed at social and economic rights at the time it was coined – should not, however, be confused with the appellative function as such. Looking at the process of establishing norms in the stage of norm emergence, claims made for a ‘new’ human right may often be of a certain generality, not least to garner broader support; but they will increasingly gain shape during the further evolution of the norm creation process56 – in rhetorical terms, building on the intentionality of topoi, one might say that they will increasingly be operationalised situationally in light of specific controversies.57 More importantly for present purposes, the pejorative sense of a ‘manifesto right’ disregards the importance of pathos in the mobilisation stage of a ‘new’ right: its generality need not diminish its ‘action-guiding’ and indeed action-generating potential.58 3.3.2. The Contesting Function Reviewing the rhetorical use of ‘new’ human rights, it becomes palpable that they serve primarily as a means of contestation (contesting function).59 A new ‘human right to …’ is generally 50 51

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See generally Hesford, Spectacular Rhetorics on the power of images in human rights rhetoric. P. Thielbörger, The Right(s) to Water: The Multi-level Governance of a Unique Human Right (Berlin: Springer, 2014), p. 110; Mégret, ‘The Human Rights of Older Persons’, 65. G. Handl, in this volume, p. 153; J. Hohmann, ‘Resisting Dehumanising Housing Policy: The Case for a Right to Housing in England’ (2017) 4 Queen Mary Human Rights Law Review 1 at 19. See generally Finnemore and Sikkink, ‘International Norm Dynamics’, 895–901. J. Feinberg, Social Philosophy (Englewood Cliffs:  Prentice Hall, 1973), p.  67; see also O. O’Neill, ‘Women’s Rights: Whose Obligations?’, in Bounds of Justice (Cambridge: Cambridge University Press, 2000), pp. 99–100, tellingly connecting the term to a ‘rhetoric of rights’. T. Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms, 2nd ed. (Cambridge and Malden: Polity Press, 2008), p. 73. Finnemore and Sikkink, ‘International Norm Dynamics’, 900; see also Campbell, ‘Realizing Human Rights’, p. 1. See generally Bornscheuer, Topik, p. 105. The term ‘action-guiding’ is borrowed from C. R. Beitz, The Idea of Human Rights (Oxford: Oxford University Press, 2009), p. 120, though his focus is more on logos than pathos. See e.g., from a variety of different perspectives, Hoffmann, ‘Shooting into the Dark’, 409; Campbell, ‘Realizing Human Rights’, p. 1; Wellman, The Proliferation of Rights, p. 173; J. Tasioulas, ‘The Moral Reality of Human Rights’,

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proposed to generate change so as to remedy a situation deemed undesirable by those who propose the right:  a lack of parental care, perceived pressures of globalisation, oppression of indigenous peoples, etc. Usually, ‘new’ human rights are anti-establishment, and they seek to empower certain vulnerable groups (e.g. children, the elderly, asylum seekers) or to address societal problems not yet solved (e.g. pollution, corruption). Proponents of ‘new’ rights attempt a rhetorical paradigm shift, be it by reframing political and legal questions which hitherto have not been addressed in rights terms (e.g. corruption, animal welfare), or be it by deriving new rights from rights already established and tailoring them to fit a specific problem (e.g. the ‘right to truth’ as derived from procedural aspects of the rights to life and liberty). Especially for disenfranchised and subaltern groups, the quest to establish a ‘new’ right or set of rights often relates to a quest for such a paradigm shift as part of a ‘discursive struggle’.60 Experiences from the feminist movement,61 the fight against racial discrimination or the gay and lesbian liberation campaigns have been mirrored in recent years in the campaign for indigenous rights62 as well as the rights of people with disabilities or trans and gender-variant persons. In these examples, the appeal to human rights clearly shows the close connection between framing something as a human rights issue and shaping concepts. For example, in the case of people with disabilities the conceptual change to a social model of disability can be demonstrated by reference to the so-called wheelchair example: it is not the wheelchair user’s walking impairment which is considered the disabling factor (as on a medical model), but rather the staircase that restricts their mobility.63 Trans rights similarly aim to shift the focus away from a medical model, most clearly in the campaign for depathologisation of gender identity ‘disorders’,64 but also more generally in various efforts ‘to amend the popular discourse so that legal recognition [is] no longer simply viewed through the lens of medicine, but … conceived through the language of human rights’.65 If not taken only as a buzzword, ‘contestation’ in international relations is a set of legal, political and societal social practices ‘which discursively express disapproval of norms’66 with a view to changing them. According to the forum in which people engage in contestational practices, Antje Wiener identifies four dominant modes of contestation: ‘arbitration (in courts), deliberation (in international organizations and regimes), contention (in societal protest) and justification (in epistemic communities)’.67 The different modes relate as much to the forum itself as to

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in T. Pogge (ed.), Freedom from Poverty as a Human Right:  Who Owes What to the Very Poor? (Oxford:  Oxford University Press, 2007), p. 95; Ignatieff, Human Rights as Politics and Idolatry, pp. 5 and 16. R. Kapur, ‘Revisioning the Role of Law in Women’s Human Rights Struggles’, in S. Meckled-García and B. Çalı (eds.), The Legalization of Human Rights: Multidisciplinary Perspectives on Human Rights and Human Rights Law (London and New York: Routledge, 2006), p. 105 (and see pp. 110–111 on efforts ‘to destabilize dominant meanings’ and supplant them with ‘alternative meanings, visions and understandings’). E.g. H. Charlesworth, C. Chinkin and S. Wright, ‘Feminist Approaches to International Law’ (1991) 85 American Journal of International Law 613 at 638. See D. Shelton, in this volume, on how indigenous peoples themselves – rather than their oppression and marginalisation – were initially thought of as the ‘problem’ (e.g. p. 219). A. von Arnauld, ‘Zur Erforderlichkeit der Ausdifferenzierung des Diskriminierungsverbotes’, in E. Klein and C. Menke (eds.), Universalität – Schutzmechanismen – Diskriminierungsverbote: 15 Jahre Wiener Weltmenschenrechtskonferenz (Berlin: Berliner Wissenschafts-Verlag, 2008), p. 407. J. T. Theilen, ‘Depathologisation of Transgenderism and International Human Rights Law’ (2014) 14 Human Rights Law Review, 327; Z. Davy, A. Sørlie and A. Suess Schwend, ‘Democratising Diagnoses? The Role of the Depathologisation Perspective in Constructing Corporeal Trans Citizenship’ (2018) Critical Social Policy 13. J. M. Scherpe and P. Dunne, ‘Comparative Analysis and Recommendations’, in J. M. Scherpe (ed.), The Legal Status of Transsexual and Transgender Persons (Cambridge: Intersentia, 2015), pp. 622–623. A. Wiener, A Theory of Contestation (Berlin: Springer, 2014), p. 1. A. Wiener, ‘A Theory of Contestation – A Concise Summary of Its Argument and Concepts’ (2017) 49 Polity 109, at 113.

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the actors who have access to it. Hence, the appeal to a ‘human right to …’ will take a different tone depending on whether it is raised in a court,68 in intergovernmental negotiations,69 in scholarly debates70 or by the people affected and civil society groups.71 However, all forms of contestation share, according to Wiener, a common structure in which concrete procedures and regulations (type 3 norms) or organising principles (type 2 norms) are challenged by appeal to fundamental norms and principles with a wide moral and ethical reach (type 1 norms).72 Human rights are by no means the only mode of contestation available, and not always the best or even a workable language of resistance.73 They are, however, prime examples for type 1 norms which ‘are of quasi-constitutional quality in the global realm’.74 The contesting function of human rights thus chimes with Martti Koskenniemi’s statement that ‘what is important is the use of the constitutional vocabulary to express a fundamental critique of present politics’.75 As part of the international community’s ‘constitution’ (the International Bill of Human Rights and other treaties and documents) on the one hand, and inalienable moral precepts on the other, human rights possess an ‘extraordinary rhetorical power’ due to their position simultaneously ‘outside’ and ‘inside’ the political community.76 From a topical perspective, one might understand this characteristic of rights as related to the interplay of habituality, potentiality and intentionality. Human rights are accepted as part of mainstream discourse, but due to their polyvalent interpretability they can be activated to challenge that very discourse – hence the description ‘accepted means to challenge the traditional legal order’ is quite apt rather than paradoxical.77 The contesting function of rights can be illustrated, for example, by reference to the rights to adequate housing and to land as presented in this volume by Miloon Kothari.78 Here, specific statutory norms on tenancy and eviction (type 3) and the norms governing the allocation of real estate property (type 2) are being criticised by recourse to human rights (type 1). Contestational practices of this kind can also be identified where a lack of regulation (or of compliance with existing rules) is being objected to, as in the fight against corruption. Concrete practices of corruption and lack of rules and procedures (type 3) as well as societal norms like nepotism or, for example, the Chinese tradition of guanxi (type 2), are contested by appeal to human rights. This might be done by reference to various established rights depending on the situation at hand, e.g. the right to health with regard to corruption in the health care sector.79 It might also, however, be done not (only) by reference to claiming the violation of a situationally assembled bundle of established human rights, but also by claiming a free-standing ‘human right to …’ such as a human right to freedom from corruption. Besides the added pathos

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Several chapters in the present volume engage with contestation before courts; see e.g. the chapters by J. Gerards, M. J. Roseman, and D. Stewart. L. H. Toro Utillano, in this volume. See below, note 114. See Shelton and J. T. Theilen, in this volume. For an overview, see A. Wiener, The Invisible Constitution of Politics: Contested Norms and International Encounters (Cambridge: Cambridge University Press, 2008), p. 66. See B. Rajagopal, International Law from Below:  Development, Social Movements and Third World Resistance (Cambridge: Cambridge University Press, 2003), chapter 7. Wiener, ‘A Theory of Contestation – A Concise Summary of Its Argument and Concepts’, 119. M. Koskenniemi, ‘Constitutionalism as Mindset:  Reflections on Kantian Themes About International Law and Globalization’ (2006) 8 Theoretical Inquiries in Law 9 at 35. M. Koskenniemi, ‘The Effect of Rights on Political Culture’, in The Politics of International Law (Oxford: Hart, 2011), p. 136. Charlesworth, Chinkin and Wright, ‘Feminist Approaches to International Law’, 638 (emphases added). M. Kothari, in this volume. A. Peters, ‘Korruption und Menschenrechte’ (2016) 71 Juristenzeitung 217 at 218.

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as mentioned above, such a reframing can serve several interrelated objectives in the practice of contestation. It can try to address the problem more specifically (as with the right to internet access compared to more general rights such as freedom of expression or access to information80). It can bring together common themes otherwise seen as governed by separate rights (as with rights relating to enforced disappearance81 or, again, the right to freedom from corruption). It can try, as Andrew Spalding’s contribution to this volume argues, to denaturalise the underlying problem (particularly if it relates to socially deeply embedded type 2 norms) so as to pave the way for contestation by discursively situating it as something that can be changed.82 We should note, however, that while human rights can be used for contestation, they also reflect and serve to legitimise prevailing power structures.83 New formulations of a ‘human right to …’ may challenge previous understandings and deficiencies of human rights with counterhegemonic intent,84 but appeal to such rights is not a monopoly of those fighting against oppression or for the disenfranchised only: they can also be employed as a means of ‘countercontestation’ by those who seek to defend the status quo, to counter criticism based on human rights or to mask regressive agendas.85 For example, a ‘right to security’ has been mobilised to justify secret surveillance by the state against its citizens and, more broadly, ‘to legitimate the state’s coercive overreach’.86 Similarly, rights such as the ‘right to trade’,87 the ‘right to globalisation’88 or the recently re-proclaimed ‘right to tourism’89 aim to further entrench existing power structures in the face of (sometimes rights-based) anti-capitalist and anti-imperialist critiques.90 This attests as much to the constructed nature of human rights (which, as topoi, rely on their habituality) as to the inherent contestedness of ‘new’ human rights as a means to bring about paradigm shifts. 3.3.3 The Connecting Function The contesting function (and counter-contestation in rights language too, for that matter) is assisted by what we are here labelling as the connecting function of a ‘human right to …’. As 80 81 82

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See Pollicino, in this volume. M. C. Galvis Patiño, in this volume. A. Spalding, in this volume, p. 518; generally on denaturalisation to enable contestation, see e.g. M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005), pp. 537–538; J. T. Theilen, ‘Of Wonder and Changing the World: Philip Allott’s Legal Utopianism’ (2017) 60 German Yearbook of International Law 337 at 346–349; for its limits, see e.g. S. Marks, ‘False Contingency’ (2009) 62 Current Legal Problems 1; see also, specifically on human rights as an attempt to ‘dispel self-fulfilling social prophecies’, Baxi, ‘Politics of Reading Human Rights’, p. 198. A. Woodiwiss, Human Rights (London: Routledge, 2005), p. 5. P. Alston, ‘Making Space for New Human Rights: The Case of the Right to Development’ (1988) 1 Harvard Human Rights Yearbook 3 at 6–7. Mégret, ‘The Human Rights of Older Persons’, 65. L. Lazarus, ‘The Right to Security’, in R. Cruft, M. S. Liao and M. Renzo (eds.), Philosophical Foundations of Human Rights (Oxford: Oxford University Press, 2015), p. 434; see also A. von Arnauld, Rechtssicherheit: Perspektivische Annäherungen an eine “idée directrice” des Rechts (Tübingen: Mohr Siebeck, 2006), pp. 93–95, with further references to the German debate. For a critical evaluation, see P. Alston, ‘Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann’ (2002) 13 European Journal of International Law 815 at 841–844. E.g. M. D. Pendleton, ‘A New Human Right – The Right to Globalization’ (1999) 22 Fordham International Law Journal 2052; for acidic criticism, see e.g. D. Kinley, Civilising Globalisation: Human Rights and the Global Economy (Cambridge: Cambridge University Press, 2010), p. 35: ‘Pendleton’s conceptual incoherence is truly breathtaking.’ For a critical evaluation, see U. Baxi, The Future of Human Rights, 3rd ed. (New Delhi: Oxford University Press, 2008), p. 96. See ibid., p.  112 on the distinction between the (hegemonic) politics of and the (counter-hegemonic) politics for human rights.

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Amartya Sen has put it, the ‘rhetoric of human rights is omnipresent in the contemporary world’,91 to the point that Boutros Boutros-Ghali described human rights as the ‘common language of humanity’.92 In light of this, framing an issue as a human right has the potential to connect various local, regional and global discourses across politics, law and morality and thereby give prominence to the underlying issue. We would emphasise from the outset that the ubiquity of human rights need not be unambiguously positive: while they may be presented as the common language of humanity, access to that language is clearly not equal,93 nor does it represent all humans equally.94 As ‘non-participating observers’,95 our point here is not to evaluate the use of human rights rhetoric, but merely to foreground some of the opportunities and interlinkages which result from its use – particularly for those ‘new’ rights not easily framed as instantiations of more established rights (e.g. the right to peace or animal rights). One important aspect is what the Vienna Declaration famously stated was ‘beyond question’: the ‘universal nature’ of human rights.96 As the above citation by Boutros-Ghali exemplifies, human rights relate the issues which they cover to the idea of a conditio humana: the rhetoric of human rights therefore ‘draws on the moral resources of our belief in the significance of an underlying common humanity’,97 and is conceptualised as a ‘common language to unify a diverse constituency’.98 Since human rights are conceived of as the rights of all human beings,99 there is a connotation of universality built into their grammar even though some of their legal instantiations are limited to particular national or regional contexts. Any claim to universality embodies particular interests;100 but for present purposes we are less interested in interrogating the notion of universality itself than in noting the claim to universality which is woven into the language of human rights (adding to their symbolicity101), as well as its practical relevance insofar as human rights are increasingly acknowledged as a ‘globally resonant category of practical standards’ (demonstrating their habituality).102 In that vein, Roberto Andorno argues in this volume that there is ‘a practical reason for appealing to human rights to address bioethical challenges: there are few, if any, mechanisms other than human rights available to function as a global “lingua franca” for dealing with biomedical-related issues’.103 More generally, too, it has become commonplace to capture the habituality and symbolicity of human

A. Sen, ‘The Global Reach of Human Rights’ (2012) 29 Journal of Applied Philosophy 91 at 91. B. Boutros-Ghali, ‘The Common Language of Humanity’ (1993), cited in Baxi, The Future of Human Rights, p. 1. 93 Ibid., p. 2. 94 As feminist critiques of human rights exemplify: see e.g. K. Engle, ‘International Human Rights and Feminism: When Discourses Meet’ (1992) 13 Michigan Journal of International Law 517; D. Otto, ‘Lost in Translation: Re-scripting the Sexed Subjects of International Human Rights Law’, in A. Orford (ed.), International Law and Its Others (Cambridge: Cambridge University Press, 2006), p. 318. 95 See above, Section 3.1. 96 Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna on 25 June 1993, at I.1. 97 Campbell, ‘Realizing Human Rights’, p. 1. 98 Clément, ‘Human Rights or Social Justice?’, 157 (also noting some disadvantages of rights language in subsequent pages). 99 See e.g. Art. 1 of the Universal Declaration of Human Rights: ‘All human beings are born free and equal in dignity and rights.’ 100 E.g. M. Koskenniemi, ‘International Law and Hegemony:  A Reconfiguration’ (2004) 17 Cambridge Review of International Affairs 197; B. Golder, ‘On the Varieties of Universalism in Human Rights Discourse’, in P. Agha (ed.), Human Rights Between Law and Politics: The Margin of Appreciation in Post-National Contexts (London: Hart, 2017). 101 See above, text to notes 36–38. 102 J. Tasioulas, ‘On the Foundations of Human Rights’, in R. Cruft, M. S. Liao and M. Renzo (eds.), Philosophical Foundations of Human Rights (Oxford: Oxford University Press, 2015), p. 45. 103 R. Andorno, in this volume, p. 339. 91

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rights by referring to them as a global ‘lingua franca’:104 they constitute what Bornscheuer calls ‘supranational topics’.105 Our point, then, is that human rights have a potentially universal reach in practice: as Florian Hoffmann has put it, they constitute ‘an undeniably empirical element in a world that is increasingly marked by global communication streams and material exchanges’.106 Not only do human rights have ‘a global and a local dimension’, they are also ‘hybrids’ which have ‘legal, moral and cultural’ instantiations.107 For example, Cruft, Laio and Renzo introduce their recent volume on human rights by describing them as ‘the distinctive legal, moral, and political concept of the last sixty years’.108 This so-called multidimensionality of human rights further contributes to their potential to connect claims, movements and positions not only geographically, but also across disciplines and different kinds of practical discourse. We can only scratch the surface of this complex picture here, but would note that, from a topical perspective, one might think of these different registers in which human rights can be invoked as ‘special topics’ (Sondertopiken), i.e. different language systems divided along the lines of nationality, class or academic disciplines.109 Our point is that for all the differences among these various human rights ‘dialects’,110 a ‘human right to …’ may constitute a topos which, as an evocative set phrase, is also intelligible across these divisions. Framing an issue as a ‘human right to …’ therefore enables its supporters to shift registers as needed while retaining a common point of reference, and to press for change in a great variety of different contexts. This chimes with the versatility of human rights as a form of rhetoric which can ‘translate meaningful ideas from one frame to another’111 even though they will be understood differently in different contexts  – whether this is national particularities, the difference between what Hauser calls ‘thin’ and ‘thick’ vernacular (rights talk in official public spheres versus a language of resistance by those whose rights have been violated)112 or a legalese understanding of human rights in contrast to moral or political approaches. Part of the attractiveness of human rights rhetoric lies precisely in its hybrid character which allows it to (sometimes, partially, controversially) connect these various forms of discourse. 3.3.4 The Triggering Function In part due to the multidimensionality of human rights and the variety of discourses within which they can be invoked, but also because of the different perspectives and professions from which

E.g. A. Buchanan, The Heart of Human Rights (Oxford: Oxford University Press, 2013), p. 7; M. Baer, ‘The Human Right to Water and Sanitation: Champions and Challengers in the Fight for New Rights Acceptance’, in A. Brysk and M. Stohl (eds.), Expanding Human Rights: 21st Century Norms and Governance (Cheltenham: Edward Elgar, 2017), p. 97; Tasioulas, ‘The Moral Reality of Human Rights’, p. 75; Ignatieff, Human Rights as Politics and Idolatry, p. 53. 105 Bornscheuer, Topik, p. 103 (‘übernationale Topiken’). 106 Hoffmann, ‘Shooting into the Dark’, 405. 107 Ibid. 108 R. Cruft, M. S. Liao and M. Renzo, ‘The Philosophical Foundations of Human Rights: An Overview’, in R. Cruft, M. S. Liao and M. Renzo (eds.), Philosophical Foundations of Human Rights (Oxford:  Oxford University Press, 2015), p.  1 (emphasis added); see also B. Çalı and S. Meckled-García, ‘Human Rights Legalized  – Defining, Interpreting, and Implementing an Ideal’, in S. Meckled-García and B. Çalı (eds.), The Legalization of Human Rights: Multidisciplinary Perspectives on Human Rights and Human Rights Law (London and New York: Routledge, 2006), p. 1, as well as the manifold perspectives contained in both these volumes. 109 Bornscheuer, Topik, pp. 103–104. 110 See above, note 27. 111 Hauser, ‘The Moral Vernacular of Human Rights Discourse’, 455. 112 Ibid., 460. 104

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they can be approached more generally, the aims of (pro)claiming a ‘human right to …’ may vary greatly. In some cases, labelling an issue as a ‘human right to …’ rather than a sub-aspect of a more established right may be no more than click-bait, as when an anti-discrimination case involving older women’s rights is reported under the headline ‘Is Good Sex a Human Right?’.113 Even in less farcical instances, the proponents of a new right will sometimes content themselves with irritating the politico-legal process – or even just academic discourse. Human rights expansionism may, as Jean d’Aspremont has put it, sometimes reflect no more than ‘a thirst for new epistemic territories as new human rights mean more areas of scholarly discussion’.114 Particularly in those cases in which concerned persons, social movements or institutions of civil society are invoking human rights in good faith and with a view to contesting the status quo, however, the use of human rights language will often involve what we here call the triggering function:  the attempt to trigger particular institutions so that they may provide authoritative proclamations or interpretations, promote the right at issue with their resources and personnel115 or provide for remedies and reparations which might otherwise have been unavailable.116 Because the rhetoric of human rights in and of itself does little to alleviate suffering and perceived injustice if powerful actors do not take note of the issue,117 the triggering function is a crucial part of instigating change, at least insofar as it is to be effected through existing institutions.118 In particular, international institutions such as those established to monitor human rights compliance will often be targeted, if only strategically, so as to then make use of their response within broader struggles at the national level:119 the triggering function may, in this way, reconnect with the appellative and contesting functions, as when Beth Simmons argues that international treaties may provide ‘rhetorical support’ in the form of ‘authoritative principles’ which can be ‘a crucial element in empowering individuals to imagine, articulate, and mobilize as rights holders’.120 Triggering involves strategy:  not only the engagement with institutions, but also the way in which certain issues are framed within the language of human rights by both activists and applicants, as well as by the institutions themselves, should they acknowledge their claims, may carry strategic elements. As Jens Theilen argues in this volume, whether a claim is (or should be) presented as a novel ‘human right to …’ or as part of a pre-existing human right depends on context121 – on how an issue relates to the balance between ‘reverence for the past’ and ‘openness to the future’, and with ‘innovators sometimes rejected as degraders, sometimes celebrated as regenerators’, to borrow a phrase from Martti Koskenniemi.122 Generally speaking, legal discourse  – and judicial reasoning in particular  – will seek to foreground the element of habituality by establishing ties to pre-existing norms and downplaying the element of novelty;123 but sometimes the invocation of a stand-alone ‘human right to …’ (whether in addition to or 113

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D. Brethour, ‘Is Good Sex a Human Right?’ (15 August 2017), available at https://rightsinfo.org/good-sex-human-right/; the case reported is ECtHR, Carvalho Pinto de Sousa Morais v. Portugal (Appl. no. 17484/15), judgment, 25 July 2017. J. d’Aspremont, ‘Expansionism and the Sources of International Human Rights Law’ (2016) 46 Israel Yearbook on Human Rights 223 at 228. Nickel, Making Sense of Human Rights, p. 96. Baer, ‘The Human Right to Water and Sanitation’, p. 97. Bob, ‘Fighting for New Rights’, p. 8; see also Baxi, The Future of Human Rights, p. 2. Hence the importance, from a normative standpoint, of enabling access to contestation for disenfranchised actors: see Wiener, ‘A Theory of Contestation – A Concise Summary of Its Argument and Concepts’, 122. See Finnemore and Sikkink, ‘International Norm Dynamics’, 893. B. A. Simmons, Mobilizing for Human Rights. International Law in Domestic Politics (Cambridge:  Cambridge University Press, 2009), p. 351. Theilen, in this volume, p. 212; see also E. Brems, in this volume, p. 328. Koskenniemi, ‘Constitutionalism as Mindset’, 22. Finnemore and Sikkink, ‘International Norm Dynamics’, 908.

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even in lieu of the focus on more established norms) carries its own advantages. For example, it might be used to underline gaps or flaws in the currently dominant understanding of human rights (as when Simon Rice argues in this volume that a ‘human right of access to law’ would have a broader ambit than various derivations from other human rights124) and thus to underline the need for change and trigger more politically oriented institutions into taking action. 3.3.5 The Jurisgenerative Function Finally, an important aspect of (pro)claiming a new ‘human right to …’ is what we would like to term the jurisgenerative function. By invoking the notion of jurisgenesis, we are building on the seminal work of Robert Cover,125 though we approach the issue from a somewhat different angle. His focus was on the way in which the creation of legal meaning, particularly by non-officials of the state, is constrained by state institutions:  the ‘jurisgenerative principle by which legal meaning proliferates in all communities’ is contrasted, for example, with (usually) ‘jurispathic’ courts.126 Different bottom-up interpretations of human rights might be said to be jurisgenerative in this sense, since they aim to ‘innovate human rights and standards’;127 Seyla Benhabib has described the jurisgenerative effects of human rights as allowing previously marginalised actors to ‘develop new vocabularies of public claim-making, and to anticipate new forms of justice to come’.128 Foregrounding jurisgenesis as part of a rhetorical framework more generally might thus be considered the legal parallel to Arabella Lyon’s suggestion to consider human rights not as ‘textual truth’ but as ‘performative deliberative practices leading to the constitution of a new form of life’.129 In light of this, our suggestion is to consider attempts to establish a certain ‘human right to …’ as a way to facilitate jurisgenesis: by coaxing discourse surrounding the issue in a certain direction, the ‘human right to …’ becomes a kind of discursive hub which not only reinforces certain values and thus constrains discourse, but may also serve as a reference point for future (re)interpretations of international law. As Tom Campbell has put it, a human right tends to ‘generate a cluster of associated concomitant rights’;130 in light of this, it becomes possible to think of it less as a norm with clearly fixed meaning and more as an element within the jurisgenerative process. The topical framework is particularly helpful for grasping this aspect: (pro)claiming a ‘human right to …’ develops previously accepted discursive elements by building on the aspect of potentiality or invention; and in doing so, the ‘new’ right becomes (or aims to become) its own topos that can, in turn, be (re)interpreted. From a formal positivist perspective, the interpretation of a more established right and the formulation of a ‘human right to …’ may seem to be similar if not identical, and the latter might thus seem legally redundant, as Günther Handl argues in his contribution to this volume with regard to the right to a clean environment.131 The jurisgenerative function, however, goes 124 125 126 127 128

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S. Rice, in this volume, p. 554. R. M. Cover, ‘The Supreme Court 1982 Term. Foreword: Nomos and Narrative’ (1983) 97 Harvard Law Review 4. Ibid., 40. Baxi, The Future of Human Rights, pp. 20, 206. S. Benhabib, ‘Introduction: Cosmopolitanism without Illusions’, in Dignity in Adversity: Human Rights in Troubled Times (Cambridge: Polity Press, 2011), p. 15. Lyon, Deliberative Acts, p. 5. Campbell, ‘Realizing Human Rights’, p.  12; see also M. Melchior, ‘Rights Not Covered by the Convention’, in R. St. J. Macdonald, F. Matscher and H. Petzold (eds.), The European System for the Protection of Human Rights (Dordrect: Martinus Nijhoff, 1993), p. 594. Handl, in this volume, pp. 146–147.

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some way to explaining why normative claims are often framed as a ‘human right to …’. The appellative function also explains this tendency to some extent, but it does so in the motivational terms of pathos, which is usually considered extra-legal. By contrast, the jurisgenerative function works within (what is deemed to be) the legal framework, albeit by way of legal rhetoric rather than by reference to formal sources of international law, since it explains how the framing as a ‘human right to …’ may have discursive effects which create legal meaning. It becomes understandable, then, why considerable energies have been invested in arguing that the human right to water, for example, is an ‘independent’ or ‘free-standing’ right rather than merely derived from other human rights such as the right to life, the right to health and the right to an adequate standard of living.132 Though explicitly recognised in such a free-standing form only in soft law and in various fragmented provisions of limited applicability, the human right to water is thus presented as ‘one human right’ rather than the more ‘complex network of different international and domestic rights’ which constitute it in more formal terms.133 Yet by virtue of this reframing, the right to water becomes more than the sum of its parts134 and it can, in turn, be relied on in controversies surrounding specific water-related issues.135 And the jurisgenerative process continues to unfold: while sanitation was originally often conceived of as simply an ‘adjunct’ of the human right to water, it is now increasingly being argued that it should be considered separately so as to, inter alia, ‘facilitate normative development’.136 In other words, proponents of a free-standing right to sanitation aim to establish it as a discursive hub of its own and provide more argumentative space for sanitation practices unrelated to water in particular.137

3.4 Outlook: The Merits of (Re)Invention Our aim in this chapter has been twofold. First, we have introduced the topical framework as one way in which human rights can be understood as a rhetorical practice without reducing the aspect of ‘rhetoric’ to its negative connotations. Second, building on that framework, we have offered a topical analysis of the way in which ‘new’ human rights are claimed, particularly in the form of a free-standing ‘human right to …’. If approached through the lens of rhetoric rather than understanding human rights as a form of textual truth, then it becomes apparent that the way certain issues are framed forms an important part of the discursive struggles underlying claims to ‘new’ human rights. We have attempted to flesh out this insight by reference to the heuristic categorisation into an appellative, contesting, connecting, triggering and jurisgenerative function of claiming a ‘human right to …’. None of this should be taken as a claim that human rights are a panacea for the problems and injustices which they serve or can serve to contest. We have argued that human rights rhetoric plays important roles within the triangulation of concepts, language and society, and thus that it is relevant to societal processes ranging from the forging of activist alliances to the 132

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E.g. T. S. Bulto, ‘The Emergence of the Human Right to Water in International Human Rights Law: Invention or Discovery?’ (2011) 12 Melbourne Journal of International Law, 1 at 5. Thielbörger, The Right(s) to Water, pp. 2–3. See ibid., p. 69. Although its phrasing in official documents, in contrast to widespread activist interpretations, also implies significant and typically jurispathic limitations, particularly with regard to the commodification of water: see C. Clark, ‘Of What Use Is a Deradicalized Human Right to Water?’ (2017) 17 Human Rights Law Review 231 at 242–246. Even in that context one might sound a hopeful note based on jurisgenesis: see ibid., 260. K. Ellis and L. Feris, ‘The Right to Sanitation: Time to Delink from the Right to Water’ (2014) 36 Human Rights Quarterly 607 at 608. Ibid., 627–628.

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development of legal standards by international institutions. This does not put into question, however, that rights are ‘neither self-generated nor self-enforcing, but rather summarise, make concrete, and depend for any protective effectiveness they may possess on the nature of wider sets of social relations and developments within them’.138 Accordingly, human rights ‘must be fought for and won’.139 Rhetorical moves – whether intended to obscure and naturalise or to challenge prevailing power structures – are part of a broader struggle.140 Some scholars claim that the ‘age of rights’141 is over142  – perhaps, then, ‘the rhetoric of rights … is exhausted’,143 no longer a helpful means of engaging in that struggle? Given the continued use of human rights both to legitimise and to contest a breath-taking range of positions across different subject-matters – as the chapters of this volume demonstrate – such an assessment, empirically speaking, may be somewhat premature. However, it is sometimes claimed that it is precisely this omnipresence of rights which is contributing to their own downfall it terms of utility:  particularly when a large number of ‘human rights to …’ are claimed or acknowledged, this is said to lead to ‘human rights inflation’ by cheapening the moniker of human rights.144 For all its downsides, however, the various functions of claiming a ‘human right to …’ discussed above demonstrate that the rhetoric of rights serves important societal functions – it allows for the mobilisation of social movements, contestation of an unjust status quo in various different registers and contexts, strategic engagement with existing institutions and development of discursive hubs which in turn facilitate further jurisgenesis and contestation. Giving too much weight to concerns about human rights inflation impedes these functions and excludes those not (yet) covered by the dominant understanding of human rights.145 As Koskenniemi has put it: ‘We need new rights, [or] new interpretations of old rights. Routine kills … rights-regimes.’146 Whether any given ‘human right to …’ is indeed desirable is, of course, up for debate.147 General opposition to such rights based on worries about inflation, however, seems to us to pay insufficient heed to the positive effects of claiming ‘new’ human rights.

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Woodiwiss, Human Rights, p. 3. S. Marks, ‘International Judicial Activism and the Commodity-Form Theory of International Law’ (2007) 18 European Journal of International Law 199 at 205; see also P. O’Connell, ‘On the Human Rights Question’ (2018) Human Rights Quarterly 962. Marks, ‘International Judicial Activism’, 209. L. Henkin, The Age of Rights (New York: Columbia University Press, 1990). M. Mutua, ‘Is the Age of Human Rights Over?’, in S. A. McClennen and A. Schultheis Moore (eds.), The Routledge Companion to Literature and Human Rights (Abingdon: Routledge, 2016), pp. 450–458. Charlesworth, Chinkin and Wright, ‘Feminist Approaches to International Law’, 635 (citing C. Smart, though they are themselves more optimistic). See above, note 1. Baxi, The Future of Human Rights, p. 112; see also Alston, ‘Making Space for New Human Rights’, 6–7. M. Koskenniemi, ‘Human Rights, Politics and Love’, in The Politics of International Law (Oxford:  Hart, 2011), p. 153. For negative examples, see above, text to notes 85–92.

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Part II

Public Good Rights

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4 Access to Water as a New Right in International, Regional and Comparative Constitutional Law Danwood M. Chirwa

4.1 Introduction Water, like the air we breathe, is a life-sustaining resource that we cannot live without. It also happens to be a common heritage of all mankind which past generations preserved, used and passed what remained on to the current generation, which must in turn manage and use it sustainably for onward transmission to future generations. It should therefore be uncontroversial to say that everyone has a right of access to water – but it is not. Can one say that access to water is now recognised as a new right in international law and a constitutional right in comparative domestic law? Why should one ask this question in the first place? Are there arguments against the recognition of the right to water? Do these arguments have any merit? This chapter seeks to address these pressing questions in the context of the current state of international and comparative law. The ultimate purpose is to find out whether there is a trend towards the recognition of access to water as a new right in international and comparative constitutional law, and if so, how such a trend is manifested. It is important to raise the question of access to water as a right given the reality that life without water is impossible and that the amount of usable water on earth is not boundless. While 71 per cent of the earth’s surface is covered by water, only a small fraction of it – less than 3 per cent  – is fresh water, and of that 3 per cent only 0.5 per cent is accessible.1 The available evidence also suggests that existing fresh water sources are being depleted, whether as a result of the fast increasing human population,2 pollution, catchment disturbance and agricultural use, or as a consequence of climate change.3 In this situation, humans must compete with each other and with other living things for water.4 Some even predict that

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World Business Council for Sustainable Development, ‘Water Facts and Trends’, available at https://docs.wbcsd.org/ 2005/08/WaterFactsAndTrends.pdf. H. Vaux Jr, ‘Water for Agriculture and Environment: The Ultimate Trade-off’ (2012) 14 Water Policy 136 at 137. See C. Vörösmarty ‘Global Threats to Human Water Security and River Biodiversity’ (2010) 467 Nature 555 at 557; Population Action International, ‘Why population matters to water resources’, available at http://pai.org/wp-content/ uploads/2012/04/PAI-1293-WATER-4PG.pdf. See Vörösmarty, ‘Global Threats to Human Water Security’, 556; W. Jury and H. Vaux Jr, ‘The Emerging Global Water Crisis:  Managing Scarcity and Conflict between Water Users’ (2007) 95 Advances in Agronomy 1; Vaux, ‘Water for Agriculture and Environment’, 136; UNDP, Beyond Scarcity:  Poverty and the Global Water Crisis (New York: UNDP, 2006), pp. 31–35.

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this competition will only intensify and is likely to provide the trigger for the next global war.5

4.2 Access to Water as a New Right The question whether access to water is a new right in international and comparative constitutional law makes at least two presuppositions. The first is that access to water is a right while the second is that there is a ready benchmark for determining the ‘newness’ or ‘oldness’ of a given right. Both presuppositions are highly contested and as such there is no easy answer to the question. In this section I attempt to provide the basis on which I answer the question of the ‘newness’ of the right of access to water. Section 4.3 examines the debate on the justification for the recognition of this right. The question of ‘newness’ of a right can be answered from two perspectives depending on whether one subscribes to the natural rights tradition or legal positivism. One’s philosophical standpoint in turn influences opinions about the status of the right to water as a discovered right, derivative right or a newly invented right.6 There is something attractive within the natural rights tradition which considers rights to be transcendent entitlements that precede society and state law.7 This has to do with the fact that a right need not be codified in existing laws for it to be deemed binding and enforceable by a court of law.8 This school of thought would support the view that the right of access to water has always been a fundamental right even though it has not been recognised expressly as an independent right in major international human rights treaties and by most domestic constitutions in the world. The idea of ‘discovery of a right’ has natural rights undertones since it conveys the idea that what has just been found was already there. The same idea informs the position of those who derive a right from another existing right, the difference being that the notion of derivative rights is clothed in positivism. ‘Derivativists’ make the argument that one right can be derived from an already legally recognised right if there is a close nexus between the expressly recognised right and the right sought to be derived. However, the self-evident basis of rights has long been questioned in legal literature,9 leading to the rise and dominance of other theories of rights, especially legal positivism. For one thing, the natural rights tradition has widely been criticised for its lack of certainty and vulnerability to abuse. No wonder that in international human rights law, in particular, the positivisation of human rights has gained currency since the formation of the United Nations in 1945, driven partly by the need to ensure that states are held to clear standards to which

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See e.g. B. Sandford, ‘Will the Next Wars Be Fought over Water’, in H. Bigas (ed.), The Global Water Crisis: Addressing an Urgent Security Issue (Hamilton: UNU-INWEH, 2012), p. 11; S. Solomon, Water: The Epic Struggle for Wealth, Power, and Civilization (New York: HarperCollins Publishers, 2010). T. Bulto, ‘The Emergence of the Human Right to Water in International Human Rights Law: Invention or Discovery’ (2011) 11 Melbourne Journal of International Law 290. According to Shestack, the natural rights theory is ‘the most closely associated with the modern human rights’. See J. Shestack, ‘The Philosophic Foundations of Human Rights (1998) 20 Human Rights Quarterly 202 at 207. The classic articulation of this principle is to be found in Sophocles, Antigone (495–406 bc) translated by E. Wyckoff, 16-16: ‘Nor did I think your orders were so strong that you, mortal man, could over-run the gods’ unwritten and unfailing laws. Not now, nor yesterday’s, they always live, and no one knows their origin in time.’ E.g., Bentham dismissed natural rights as ‘simple nonsense:  natural and imprescriptible rights, rhetorical nonsense, – nonsense upon stilts’. See J. Bentham, Rights, Representation, and Reform: Nonsense upon Stilts and Other Writings on the French Revolution, ed. by P. Schofield, C. Pease-Watkin and C. Blamires (Oxford: Clarendon Press, 2002), pp. 317–401.

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they have freely chosen to commit and partly because of the nature of international law as consent-based law.10 An emphasis on formal rules of recognition and law-making has meant that for one to answer the question whether the right to water exists as a new or old right, recourse has to be made to legally binding sources of international law to find out whether they prove that the right has recently been recognised or was already recognised.11 The idea of invention refers to situations in which a right has recently been formally legally recognised where there was no right before. However, invention does not accurately capture the international practice of standardsetting in human rights, where aspects of a given right are usually recognised in prior soft law instruments and documents before the right is codified in a binding treaty or source of law. The more accurate term to describe how human rights are codified in international law is affirmation or formal recognition. This entails the adoption of a binding treaty that recognises a right as an independent legal right with the possibility of justiciability before a judicial or quasi-judicial body.12 This result is usually achieved after piecemeal development of international, regional and comparative domestic law. This chapter shows that the right of access to water is going through a process of achieving such formal affirmation. It is yet to gain full recognition in international and comparative law, but there certainly is a strong trend towards its full legal recognition. When this process is completed, what will result is not an invention of a new right but rather the consolidation of various previously recognised aspects of the right.

4.3 Arguments for and against Access to Water as a Right Much of the controversy about the existence of the right of access to water has more to do with concerns about socio-economic rights in general than with concerns about the right to water itself. Socio-economic rights have long been frowned upon because they allegedly violate the distinction between ‘freedom from’ and ‘freedom to’, real rights being tied to the ‘freedom from’ label, and ‘freedom to’ rights, in which category the right of access to water and other socioeconomic rights fall, being called bogus rights.13 ‘Freedom to’ rights are indeterminate and vague by virtue of their inherently positive nature,14 making it difficult to define their content and the obligations they entail,15 to implement them immediately16 or to enforce them judicially.17

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See Permanent Court of International Justice (PCIJ), Lotus Case (France v. Turkey), 1927 PCIJ Reports, Series A, No. 10, at 18, where the PCIJ said: ‘The rules of law binding upon states … emanate from their own free will as expressed in conventions or usages generally accepted as expressing principles of law.’ These are generally taken to be those listed by Art. 38(1) of the Statute of the International Court of Justice. This is largely due to the influence of the origins of this thinking in the command theory of law, which associates the law with a sovereign who gives commands to which are attached sanctions to be imposed when the commands are not complied with. See e.g. J. Austin, The Province of Jurisprudence Determined, 1832, ed. by W. Rumble (Cambridge: Cambridge University Press, 1995). See I. Berlin, Four Essays on Liberty (Oxford:  Clarendon Press, 1969), pp. 121–154; D. Kelley, ‘A Life of One’s Own: Individual Rights and the Welfare State’ (1998), reproduced in H. Steiner, P. Alston and R. Goodman (eds.), International Human Rights in Context: Law, Politics and Morals – Text and Materials (Oxford: Oxford University Press, 2008), pp. 285–287. See S. White, ‘Social Minimum’ (2009) Stanford Encyclopedia of Philosophy, available at http://plato.stanford.edu/ entries/social-minimum/. B. Williams, ‘Human Rights and Relativism’, in G. Hawthorn (ed.), In the Beginning Was the Deed: Realism and Moralism in Political Argument (Princeton: Princeton University Press, 2005), p. 64. See M. Cranston, What Are Human Rights? (New York: Taplinger, 1973), p. 67. See e.g. A. Neier, ‘Social and Economic Rights: A Critique’ (2006) 13 Human Rights Brief 1.

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Although they continue to appear,18 these arguments have long been demolished by showing either that ‘freedom from’ rights are also positive and vague and pose similar challenges to ‘freedom to’ rights, or that ‘freedom to’ rights also entail negative action.19 Although socioeconomic rights are, after a long period of contestation, now fully recognised as full rights,20 the right of access to water was left behind, with the result that its legal standing remains rather tenuous, as will be seen below. There remain those who still argue that this right should not be recognised as an independent right, but rather as part of ‘other inextricably related’ human rights such as the right to an adequate standard of living.21 One reason for this claim is apparently that if access to water was recognised as an independent right, the right would become ‘unduly specific’ and lose its connections with other key rights such as the rights to health, life, food and environment.22 The other reason has to do with the profligacy argument, which holds that if you recognise too many rights, the currency of the whole idea of human rights would be undermined.23 It has also been argued that a rights approach to water is dangerous because it would make it possible for people to bargain it away.24 None of these arguments touch on the philosophical basis of the right to water. Of course, the right to water is linked to many other rights, but that does not mean, or at least the argument does not show, that it is dependent on, subordinate to or subsidiary to those other rights. Besides, the notion of the interdependence, indivisibility and interrelatedness of all human rights is well known and recognised in international law.25 This recognition has not undermined the separateness of individual rights or prevented international human rights monitoring bodies from interpreting specific rights independently or in the light of other rights. Moreover, there is no evidence that shows that the growth of the normative framework for the protection of human rights in international law, from its humble and narrow beginnings in the UN Charter26 and the 18

19

20

21

22 23

24 25

26

See e.g. Neier, ‘Social and Economic Rights’; M. Dennis and D. Stewart, ‘Justiciability of Economic, Social and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing and Health?’ (2004) 98 American Journal of International Law 462. See e.g. C. Scott and P. Macklem, ‘Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution’ (1992) 141 University of Pennsylvania Law Review 1; H. Shue, Basic Rights: Subsistence, Affluence and the US Foreign Policy (Princeton: Princeton University Press, 1980), pp. 22–64; D. Beetham, Democracy and Human Rights (Cambridge: Cambridge University Press, 1999); S. Liebenberg, ‘The Protection of Economic and Social Rights in Domestic Legal Systems’, in A. Eide, C. Krause and A. Rosas (eds.), Economic, Social and Cultural Rights: A Textbook, 2nd rev. ed. (Dordrecht: Martinus Nijhoff Publishers, 2001), pp. 55, 57–61; P. de Vos, ‘Pious Wishes or Directly Enforceable Human Rights? Social and Economic Rights in South Africa’s 1996 Constitution’ (1997) 13 South African Journal on Human Rights 67; E. Mureinik, ‘Beyond a Charter of Luxuries: Economic Rights in the Constitution’ (1992) 8 South African Journal on Human Rights 464. The Additional Protocol to the European Social Charter Providing for a System of Collective Complaints was adopted in 1995, while the Additional Protocol to the American Convention, which allows for petitions regarding trade union and education rights, entered into force on 16 November 1999. On 6 October 1999 the UN General Assembly adopted the Optional Protocol to Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which provides for individual petitions concerning alleged violations of the rights under CEDAW and an inquiry procedure. In 2006 the International Convention for the Protection of All Persons from Enforced Disappearances was adopted, which also made provision for individual and state complaints. On 10 December 2008 the UN General Assembly adopted the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, which rendered the International Covenant on Economic, Social and Cultural Rights (ICESCR) justiciable. S. Tully, ‘A Human Right to Access Water? A Critique of General Comment No 15’ (2005) 23 Netherlands Quarterly of Human Rights 35 at 39–40. Ibid. M. Risse ‘The Human Right to Water and Common Ownership of the Earth’ (2013) Faculty Research Working Paper Series, Harvard Kennedy School 27–29. Tully, ‘A Human Right to Access Water?, 52. See e.g. World Conference on Human Rights, Vienna Declaration and Programme of Action, 25 June 1993, A/ CONF.157/23, para. 5. Charter of the United Nations, San Francisco, 26 June 1945, in force 24 October 1945, 1 UNTS XVI.

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Universal Declaration of Human Rights (UDHR)27 to its current state comprising a wide array of specialised instruments articulating detailed specific rights,28 has undermined the currency of human rights. If anything, the idea of human rights has become stronger as more specialised norms have developed at all levels – international, regional and domestic. There are good reasons for recognising the right to water as an independent right. The first is that this would enhance the profile of the right and make it possible for it to be developed more holistically in its own right. As Scheuring has argued, ‘[a]n independent right to water would facilitate a clear delineation of the exact content and obligations of such right.’29 As a dependent right, the right to water can only evolve in a fragmented fashion as its associated rights are developed over time. Its links to other rights might not be fully appreciated without knowing the content of the right to water in itself. Or developing the right to water only through the prism of other rights might distort the meaning of the right to water. Recognising the right to water as a derivative right, say of the right to health, food or life, could also have a negative impact on its enforcement. As Bluemel has argued, in order for a litigant to obtain redress for a violation of the right to water, he or she must prove a violation of a primary right.30 But it is possible for the right to water to be violated without violating the primary right associated with it. For example, the right to water could be implied in the right to health to the extent that water is essential for hygiene. However, access to water for cultural purposes or farming may not be easily justified within the framework of the right to health. Tully’s argument that recognising the right to water will allow people to bargain away their water and introduce an unequal system of water provision is based on a narrow conception of the right to water that sees water as a commodity that can be owned, purchased and alienated like land. It might be helpful to point out, for a start, that Tully does not provide evidence of any state which does not recognise the right to water and has an egalitarian system of water provision where everyone can access the same quality and amount of water services. On the contrary, he seems to promote a market-based system of water provision that is more prone to creating unequal access. The right to water is broad. While it, at bottom, guarantees every person a minimum amount of water for personal hygiene, consumption, domestic and cultural use, it also protects existing access to water and obligates the state to facilitate the provision of safe water at affordable prices.31 One can see, therefore, that the obligations of the state in relation to this right do not start and end with the provision of the minimum amount of water to all. There are other reasons for the recognition of the right to water in international law. Mathias Risse, for example, argues, relying on John Locke, that all the resources of the earth that are 27 28

29 30 31

UNGA Resolution 217A (III), 10 December 1948, UN Doc. A/810 at 71. See e.g. the International Covenant on Economic, Social and Cultural Rights (ICESCR), New York, 16 December 1966, in force 3 January 1976, 993 UNTS 3; the International Covenant on Civil and Political Rights (ICCPR), New York, 16 December 1966, in force 23 March 1976, 999 UNTS 171; International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), New York, 21 December 1965, in force 4 January 1969, 660 UNTS 195; the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), New York, 18 December 1979, in force 3 September 1981, 1249 UNTS 13; the Convention on the Rights of the Child (CRC), New York, 20 November 1989, in force 2 September 1990, 1577 UNTS 3; the Convention on the Rights of Persons with Disabilities (CRPD), UNGA Resolution 61/106, Annex I, 13 December 2006, in force 3 May 2008, UN Doc. A/61/ 49; and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Convention on Migrant Workers), in force 1 July 2003, UNGA Resolution 45/158, 18 December 1990, UN Doc. A/RES/45/158. S. Scheuring, ‘Is There a Right to Water in International Law?’ (2009) 15 UCL Jurisprudence Review 147 at 149. E. Bluemel, ‘The Implications of Formulating a Human Right to Water’ (2004) 32 Ecology Law Quarterly 957 at 968. General Comment No. 15 ‘The Right to Water (Arts. 11 and 12 of the Covenant)’, UN Doc. E/C.12/2002/11 (2003), paras. 25–29, 37.

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necessary for human life belong to humankind collectively, because such resources came about without human intervention and because access to basic means of survival is an issue of moral significance.32 ‘[A]ll humans’, he claims, ‘have a symmetrical claim to original resources.’33 Unlike Locke, who nevertheless defended private ownership of land because of its potential to increase the productive value of land,34 Risse thinks that water is, at a conceptual level at least, more suited to common ownership than land. Although he does not offer a justification for this view, there are some differences between water and land which could justify his view. Unlike land, water is directly consumable. Some water sources can provide usable water without processing while land requires significant human capital and labour to be of use. Furthermore, it is not as easy to parcel out water sources among private parties as it is with land. Indeed, some water sources such as lakes and rivers traverse the territories of several states, making private ownership difficult to facilitate. These differences call into question the applicability of the institution of private ownership of water as the main means of guaranteeing access by all to this essential resource.35 Thus, with respect to water, what is crucial about Locke’s theory is his attempt to foreground the right to natural resources essential to life in the right to life and the shared duty to preserve mankind.36 This provides a basis for intergenerational equity in the use of water, which Risse fully endorses. The right to water could also be justified by an appeal to modern redistributive theories usually used to justify other socio-economic rights.37 For example, it is unimaginable that access to water could not form part of the social minimum that John Rawls’ rational individuals in the original position would choose.38 This right could also be justified by an appeal to the capabilities approach to rights, given that water is central to the fulfilment of the whole gamut of capabilities that would enable people to live a life worthy of human dignity.39 It can therefore be concluded that arguments that infer that the right to water cannot be a legal right because of its association with socio-economic rights fail. If anything, there are ample arguments for it to be accepted as a right.

4.4 The Evolution of the Right of Access to Water: Towards Formal Recognition and Consolidation This section tracks the development of the right of access to water in international law, comparative regional law and domestic constitutional law. It seeks to investigate how this right has been recognised. Has it been recognised as an independent right or an aspect of other rights? In what legal forms has such recognition taken place? Can one say that the right has been given full formal legal recognition? If so, is such recognition a form of discovery, invention, derivation or affirmation?

32 33 34

35

36 37

38 39

Risse, ‘The Human Right to Water’, 17. Ibid., 18. J. Locke, Two Treatises of Government II, ed. by P. Lasckett (Cambridge:  Cambridge University Press, 1988), pp. 286–289. Note that the argument is not that water cannot be provided by private actors. It rather is that water sources should be considered public resources to which everyone must be guaranteed minimum access. See S. Drury, ‘Locke and Nozick on Property’ (1982) XXX(1) Political Studies 28 at 40. See e.g. J. Rawls, A Theory of Justice (Cambridge, MA:  Harvard University Press, 1971); R. Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cambridge, MA: Harvard University Press, 2000). Rawls, A Theory of Justice. See e.g. A. Sen, Inequality Reexamined (Oxford: Clarendon Press, 1992), p. 40.

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4.4.1 International Law The UDHR is widely regarded as the document that specifies the human rights broadly referred to in the UN Charter. Lauded for recognising socio-economic rights alongside civil and political rights, the UDHR did not, however, expressly enshrine the right to water. This oversight was repeated when the UDHR was split into the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). Driven by arguments referred to earlier that socio-economic rights are not legal rights but, at best, programmatic ideals realisable at the discretion of governments, this split marked the formal recognition of the subordinate status of all socio-economic rights in international law. The failure to mention the right of access to water in the UDHR, the ICCPR and the ICESCR has been cited as a deliberate decision and evidence that access to water is not a right.40 However, this argument cannot explain how this right can be divorced from other socio-economic rights the ICESCR expressly recognises. Langford has also argued that the travaux préparatoires of these treaties are inconclusive on the intention of the drafters.41 Other commentators maintain that the right of access to water was not expressly included in the ICESCR because access to water was not a pressing issue at the time,42 because the right of access to water is ‘so fundamental that its inclusion was unnecessary’43 or because the drafters considered that other socio-economic rights adequately protected the right to water.44 While the ICESCR does not recognise an independent right of access to water, it recognises several rights that are intimately linked with it, such as the right to an adequate standard of living, the right to food, the right to housing, the right to health and the right to life. For example, Article 11(1) of the ICESCR obligates states parties to ‘recognise the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions’. Although water is not mentioned expressly in the list of things that are necessary for an adequate standard of living, it is undoubtedly one of the main preconditions of life. Article 11(2) of the ICESCR talks more specifically about food and obligates states ‘to disseminate knowledge of the principles of nutrition’ and reform agrarian systems so as ‘to achieve the most efficient development and utilization of natural resources’. The relevance of water to health is also seen in Article 12 of the ICESCR, which requires states to improve ‘all aspects of environmental and industrial hygiene’. The Committee on Economic, Social and Cultural Rights (CESCR) has interpreted the right to health as ‘extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation’.45 The CESCR has also established a link between the right to water and housing. According to its General Comment No. 4, housing means something ‘more than just having a roof over one’s

40 41

42

43 44

45

See e.g. Tully, ‘A Human Right to Access Water?’ M. Langford, ‘A Motion that Overleaps Itself? A Response to Stephen Tully’s Critique of the General Comment on the Right to Water’ (2006) 24 Netherlands Quarterly of Human Rights 433 at 440–442. E. Riedel, ‘The Human Right to Water and General Comment No 15 of the CESCR’, in E. Riedel and P. Rothen (eds.), The Human Right to Water (Berlin: BWV, 2006), pp. 19, 24; I. Winkler, The Human Right to Water: Significance, Legal Status and Implications for Water Allocation (Oxford: Hart, 2012), chapter 1. Tully, ‘A Human Right to Access Water?’, 37, citing P. Gleik, ‘The Human Right to Water’ (1999) 1 Water Policy 487. I. Galtung, ‘Lawyers or Liars? Is World Hunger Suable in Court?’ (PhD Thesis, European University Institute, Florence, 2011), p. 141, cited in P. Thielbörger, ‘Re-conceptualizing the Human Right to Water: A Pledge for a Hybrid Approach’ (2015) Human Rights Law Review 1 at 3–4. CESCR, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 ICESCR), 11 August 2000, UN Doc. E/C.12/2000/4, para. 11.

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head’ and also entails the right to ‘live somewhere in security, peace and dignity’.46 In particular, the right to adequate housing encompasses the right to have ‘sustainable access to natural and common resources, safe drinking water, [and] energy for cooking’.47 These provisions provide a basis for saying that the right of access to water is recognised as an implied or derivative right. Even if giving formal recognition to access to water as a human right was not a pressing matter in 1966 when the ICESCR and the ICCPR were adopted, access to water was already regarded as critical in international humanitarian law. The Geneva Conventions of 1949 and Additional Protocol I of 1977 both require states to provide sufficient drinking water to prisoners of war or internees and prohibit states from destroying objects necessary to the survival of civilians such as drinking water installations.48 This prohibition has been further reinforced in international criminal law.49 Outside the context of armed conflict and international humanitarian law, the need for protecting the right to water began to feature in the international policy forum by 1977. For example, in that year the UN Water Conference held in Mar del Plata, Argentina, confirmed that ‘[a]ll peoples, whatever their stage of development and their social and economic conditions have a right to have access to drinking water’.50 Two years later, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)51 made explicit mention of water in Article 12(2)(h), which requires states parties to ensure to rural women the right to ‘enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply’.52 The CEDAW was more receptive of socio-economic rights in general and the right to water in particular, presumably because women’s rights activists and feminist scholars have generally linked the marginalisation of women to their lack of access to basic services and to the fact that duties related to fetching water and domestic hygiene are mostly performed by women.53 Following the CEDAW, the Convention on the Rights of the Child (CRC),54 adopted in 1989, also expressly refers to water as part of the right to health. According to Article 24(2)(c) of the CRC, states have a duty to combat disease and malnutrition ‘through the provision of nutritious foods and clean drinking water’.55 Although the CEDAW and CRC recognise aspects of the right of access to water as subsets of other socio-economic rights, it is important to recall that these treaties were adopted without 46

47 48

49

50

51 52 53

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CESCR, General Comment No. 4: The Right to Adequate Housing (Art. 11(1) ICESCR), 13 December 1991, UN Doc. E/1992/23, para. 7. Ibid., para. 8(b). See Art. 26 Geneva Convention (IV) relative to the Protection of Civilian Persons in Times of War, 12 August 1949, Art. 89 Geneva Convention (III) relative to the Treatment of Prisoners of War, 12 August 1949, and Art. 54 of the Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. E.g., according to Art. 6(1)(c) of the Rome Statute of the International Criminal Court, genocide may be committed by ‘deliberately inflicting on [a] group conditions of life calculated to bring about its physical destruction in whole or in part’. Such destruction could be accomplished by ‘imposing either inhuman conditions of life in a concentration camp, a subsistence diet, or systematic expulsion from homes and by reducing essential medical services below minimum acceptable level [sic]’. See E. Fronza, ‘Genocide in the Rome Statute’, in F. Lattanzi and W. Schabas (eds.), Essays on the Rome Statute of the International Criminal Court (Ripa Fagnano Alto: Il Sirente, 1999), pp. 105, 125. Report of the United Nations Water Conference, Mar del Plata, 14–15 March 1977, available at www.ielrc.org/ content/e7701.pdf. See note 28 above. Emphasis added. See e.g. R. Brown and J. Oder, ‘The Protection of Women’s Economic, Social and Cultural Rights in Africa’, in D. Chirwa and L. Chenwi (eds.), The Protection of Economic, Social and Cultural Rights in Africa: International, Regional and National Perspectives (Cambridge: Cambridge University Press, 2016), pp. 121, 123. See note 28 above. Art. 24(2)(c) (emphasis added).

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a complaints mechanism due in part to the continuing disquiet about socio-economic rights. However, this disquiet thawed significantly after the fall of the Berlin Wall such that debates about giving full recognition to socio-economic rights in international law were no longer polarised along cold war ideological lines or allegiances. As a result, from the 1990s it became easier for states to adopt treaties establishing complaints procedures for socio-economic rights.56 With specific reference to the right of access to water, the Protocol on Water and Health to the Convention on the Protection and Use of Transboundary Water Courses and Lakes57 was adopted in 1999 to promote the protection of human health and well-being through improving water management, protecting water eco-systems and preventing and controlling water-related diseases.58 Although not couched in human rights language, the Protocol articulates state obligations that are implicit in the right to water. By 2000 authoritative reports by the World Health Organization and the UN Commission on Sustainable Development had revealed that more than a billion people did not have access to water and an additional 2.3 billion suffered from water-related illnesses.59 It thus became urgent to articulate the right to water more clearly in international law. This is why the CESCR took it upon itself to elaborate General Comment No. 15 on the right to water,60 which it adopted in 2003. Noting that aspects of the right to water were already recognised in various treaties and documents, as has been shown, the CESCR derived the right to water from the provisions of the ICESCR on the right to an adequate standard of living, the right to adequate housing and adequate food, and the rights to life and human dignity.61 The view espoused by the CESCR in General Comment No. 15 that the right to water is already recognised as an aspect of other socio-economic rights in international law has since been reinforced by the Convention on the Rights of Persons with Disabilities,62 adopted in 2006 by the UN Human Rights Council and the UN General Assembly, which recognises the right of persons with disabilities to an adequate standard of living and obligates states parties to ‘ensure equal access by persons with disabilities to clean water services’.63 On 28 March 2008 the UN Human Rights Council adopted Resolution 7/22, appointing an independent expert on the right to water, in which it emphasised that ‘international human rights instruments, including the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights 56

57

58 59

60 61 62 63

The Additional Protocol to the European Social Charter Providing for a System of Collective Complaints was adopted in 1995, while the Additional Protocol to the American Convention, which allows for petitions regarding trade union and education rights, entered into force on 16 November 1999. On 6 October 1999 the UN General Assembly adopted the Optional Protocol to CEDAW, which provides for individual petitions concerning alleged violations of the rights under CEDAW and an inquiry procedure. In 2006 the International Convention for the Protection of All Persons from Enforced Disappearances was adopted, which also made provision for individual and state complaints. On 10 December 2008 the UN General Assembly adopted the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, which rendered the ICESCR justiciable. Protocol on Water and Health to the Convention on the Protection and Use of Transboundary Water Courses and Lakes, London, 17 June 1999, MP.WAT/2000/1, EUR/ICP/EHCO 020205/8FIN. Art. 1. See WHO, The Global Water Supply and Sanitation Assessment 2000 Report (Geneva, 2001), available at www .who.int/water_sanitation_health/monitoring/jmp2000.pdf; ECOSOC, Commission on Sustainable Development, Comprehensive Assessment of the Freshwater Resources of the World, 4 February 1997, UN Doc. E/CN.17/1997/9, para. 39. CESCR, General Comment No. 15, paras. 25–29, 37. Ibid. paras. 3, 7–8. UNGA, Resolution 61/106, Annex I, UN Doc. A/61/49. Art. 28(2)(a).

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of the Child entail obligations in relation to access to safe drinking water and sanitation’.64 In endorsing the appointment of the independent expert, the UN General Assembly expressly acknowledged ‘the importance of equitable, safe and clean drinking water and sanitation as an integral component of … all human rights’ and declared that ‘safe and clean drinking water and sanitation’ is a human right ‘that is essential for the full realisation of life and all human rights’.65 This discussion shows that while the right to water is not yet recognised as an independent right in international law, various international human rights treaties, international humanitarian law and international criminal law make implied and express reference to aspects of it. This seems to be the basis on which the CESCR formulated General Comment No. 15 and proclaimed a derivative right to water. As the General Comment is by itself not legally binding, it cannot be said that the right to water has been given full legal affirmation as a comprehensive and independent right in international law. Much now depends on how the CESCR approaches the right to water in specific complaints – whether it will enforce it as an independent right or as a derivative right. 4.4.2 Regional Human Rights Systems As was the case initially with the UN system, the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention),66 adopted in 1953, recognised mostly the traditional civil and political rights, leaving out socio-economic rights. Almost a decade later, the adoption of the European Social Charter67 gave recognition to socioeconomic rights, but without mentioning the right to water explicitly. However, the European Social Charter recognises a wide range of socio-economic rights that relate to water, such as the right to safe and healthy working conditions,68 the right to protection of health,69 the right of the family to social, legal and economic protection,70 and the right of mothers and children to social and economic protection.71 In the Inter-American system the right to water is not recognised explicitly as an independent right. However, as in the European system, this right can be derived from other socioeconomic rights. For states that are not party to the American Convention on Human Rights,72 the American Declaration of Rights and Duties of Man,73 which recognises, among other rights, the ‘right to life and the right to the preservation of … health through sanitary and social measures relating to food, clothing, housing and medical care’, is binding and enforceable by the Inter-American Commission on Human Rights.74 For states that are party to the American 64

65 66

67 68 69 70 71 72

73

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UNHRC, Resolution 7/22, Human Rights and Access to Safe Drinking Water and Sanitation, 41st meeting, 28 March 2008. UNGA, The Human Right to Water and Sanitation, 26 July 2010, UN Doc. A/64/L63/L.63/Rev.1. European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, in force 3 September 1953, ETS 5, 213 UNTS 222. European Social Charter, 18 October 1961, in force 26 February 1965, ETS No 35. Art. 3. Art. 11. Art. 16. Art. 17. American Convention on Human Rights, San José, 22 November 1969, in force 18 July 1978, OAS Treaty Series No. 36, 1144 UNTS 123. OAS Res XXX, adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 17. IACtHR, Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89 of 14 July 1989, Ser. A, No. 10, paras. 35–44.

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Convention, the American Declaration is not enforceable directly:  direct reliance has to be placed on the American Convention or the Additional Protocol to the American Convention on Human Rights.75 While Article 26 of the American Convention, which commits states to adopting measures to progressively realise the rights implicit in the economic, social, educational, scientific and cultural standards set forth in the Charter of the Organization of American States,76 has been interpreted as impliedly recognising socio-economic rights, the Additional Protocol expressly recognises many socio-economic rights including the rights to health, food and healthy environment and to ‘have access to basic public services’.77 With this treaty in mind, the Inter-American Commission has said that: access to water is an indispensable element in ensuring the right to life and to personal integrity, and that it is an essential aspect of the right to health, as it constitutes an inherent aspect of health measures, food, housing, and medical care … [T]he right to [have] access to water has special aspects regarding indigenous and tribal peoples and their rights over their lands and the natural resources.78

This view is consistent with the Inter-American Court on Human Rights’ holding that the right to life encompasses ‘the right not to be prevented from having access to the conditions that guarantee a dignified existence’79 and the obligation on the part of the state to ‘take all appropriate measures to protect and preserve the right to life’.80 The Inter-American Commission has also said that every person deprived of liberty has the right to have access at all times to sufficient drinking water suitable for consumption’.81 The African regional system has generally been more progressive than the other two regional systems as far as the protection of socio-economic rights is concerned. However, despite recognising the individual’s right to health and peoples’ rights to a healthy environment and to development, the main founding instrument, the African Charter on Human and Peoples’ Rights (African Charter),82 does not expressly recognise the right to water. This oversight was not due to the fact that there was any opposition to the right to water, but rather that no argument for the recognition of this right was put forward. This was to be rectified in part by the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women,83 which provides that the right to nutritious and adequate food requires that states take appropriate measures ‘to

75

76 77 78

79 80

81

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OAS Treaty Series No. 69 (1988), 17 November 1988, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 67. See T. Melish, ‘The Inter-American Commission on Human Rights: Defending Social Rights through Case-Based Petitions’, in M. Langford (ed.), Socio-economic Rights Jurisprudence:  Emerging Trends in Comparative and International Law (Cambridge:  Cambridge University Press, 2008) pp. 339, 343. Charter of the Organization of American States, 30 April 1948, in force 13 December 1951, 119 UNTS 3. See Arts. 10–12. IAComHR, Annual Report 2015, Chapter IV.A, para. 29, available at www.oas.org/en/iachr/docs/annual/2015/doc-en/ InformeAnual2015-cap4A-agua-EN.pdf. IACtHR, Villagram Morales & Others v. Guatemala, judgment, 19 November 1999, Ser. C, No. 63, para. 144. IACtHR, Case of the Xákmok Kásek Indigenous Community v. Paraguay (Merits, Reparations and Costs), judgment, 24 August 2010, Ser. C, No. 214, para. 196. See Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, Approved by the Inter-American Commission on its 131st Regular Session, 3–14 March 2008, Principle XI.2. See also IAComHR, Congo v. Ecuador, Report no. 63/99, case 11.427, 13 April 1999, OEA/Ser.L/V/II.106, doc 6 rev; IAComHR, Lallion v. Grenada, Report no. 124/99, case 11.765, 27 September 1999, OEA/Ser.L/V/II.106, doc 6 rev. African Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, in force 21 October 1986, OAU Doc. CAB/ LEG/67/3 Rev 5, 21 ILM 58. Adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, CAB/LEG/66.6, adopted 13 September 2000.

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provide women with access to clean drinking water’.84 It is likely that the African Commission on Human and People’s Rights (AComHPR) will enforce this right given that it has held that socio-economic rights not expressly recognised in the Charter can, where justifiable, be deemed to be impliedly recognised by other expressly recognised rights.85 As the foregoing shows, the right of access to water is less assuredly protected in the three regional systems than in the UN system. At most, aspects of this right have been interpreted to be impliedly protected by a number of other rights. What is encouraging, though, is that socioeconomic rights are being litigated more and more at the regional level,86 which increases the possibility of confirming the status of the right of access to water as a derivative or implied right. 4.4.3 Comparative Constitutional Law Legal developments in international and regional human rights law generally influence domestic constitutional practices in the same way that the reverse is the case. Those that hold that the CESCR’s General Comment No. 15 merely codifies a right that already existed87 have to cite domestic law as evidence if reliance is placed on state practice for purposes of proving the basis of this right under customary international law. However, this route does not hold much promise. Just as in international law, efforts to enforce the right to water in domestic courts have long been hampered by resistance to giving constitutional recognition to socio-economic rights in general. This is reflected in the fact that before 199088 it was very rare for these rights to be enshrined in a constitution as a justiciable right. This position has changed dramatically since the 1990s, precipitated by the end of the cold war which freed human rights from the West–East political ideological logjam. Nowhere is this change more visible than in Africa, where most states have adopted new constitutions which recognise socio-economic rights – and increasingly the right to water– as human rights as part of that democratisation . Since the 1990s, only a few African states have retained the traditional approach to socioeconomic rights whereby these rights are not enshrined in the bill of rights or are simply relegated to the status of directive principles of state policy.89 Of these, the Constitutions of the Gambia and Zambia recognise the duty to provide access to ‘clean and safe water’ as a directive principle of state policy.90 More African states have opted for either direct constitutional protection of socio-economic rights, whereby these rights are enshrined expressly in a bill of rights,91 or hybrid protection, whereby some socio-economic rights are recognised in the bill 84 85

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Art. 15(a). See e.g. AComHPR, Social and Economic Rights Action Centre (SERAC) and Another v. Nigeria, 27 October 2001, AHRLR 60. Cranston, What Are Human Rights? See e.g. Bulto, ‘The Emergence of the Human Right to Water in International Human Rights Law: Invention or Discovery’. The fall of the Berlin Wall in 1989 is widely believed to have ended the ideological war that held progress on socioeconomic rights hostage. These rights were seen to be welfare rights promoted by communist regimes and considered inimical to capitalist systems. This historic moment also marked the end to the cold war, and was quickly followed by the fall of many socially oppressive regimes in Africa where new constitutions promising democracy and respect for human rights were adopted. Examples of the remaining states include Botswana, Cameroon, the Gambia, Lesotho, Liberia, Mauritania, Nigeria, Sierra Leone, Sudan and Zambia. Art. 216(4) of the 1996 Constitution of Gambia, revised in 2004, provides that the state shall ‘endeavour to facilitate equal access to clean and safe water’. Art. 112 of the 1996 Constitution of Zambia provides that the state ‘shall endeavor to provide clean and safe water’. The range of the socio-economic rights they enshrine varies widely.

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of rights and others as principles of state policy. Of the former type, the Constitutions of South Africa and Kenya expressly mention the right to water in their respective bills of rights.92 Among the African constitutions with the hybrid model of socio-economic rights, the Constitutions of Malawi and Uganda expressly recognise the right to the enjoyment of economic, social, cultural and political development and the right to a clean and healthy environment respectively.93 The Ugandan Constitution also articulates a national objective and directive principle on ‘clean and safe water’, requiring the state to take ‘all practical measures to promote a good water management system at all levels’.94 The Ghanaian Constitution enshrines a constitutional objective, urging the state to ‘promote just and reasonable access by all citizens to public facilities and services in accordance with the law’.95 Lastly, the Eritrean Constitution expressly recognises in its bill of rights the right of ‘equal access to publicly funded social services’ and obligates the state to ‘secure … the social welfare of all citizens especially those disadvantaged’.96 It also enshrines national objectives which state: ‘In the interest of present and future generations, the State shall be responsible for managing all land, water, air, and natural resources and for ensuring their management in a balanced and sustainable manner.’97 The trend towards the constitutional recognition of socio-economic rights and the right to water is also visible in other parts of the world where new constitutions have been adopted or old ones revised. In South America, the Constitution of Ecuador of 2008, revised in 2015, provides that the ‘human right to water is essential and cannot be waived’.98 The Constitution of the Dominican Republic of 2015 recognises the right to ‘integral health’ and the duty of the state to ‘safeguard the protection of the health of all persons, access to potable water, improvement of nutrition, sanitation services, hygienic conditions, and environmental cleanliness’.99 It also declares the following foundational principle: ‘Water constitutes an inalienable, imprescriptible strategic national patrimony for the use of the public that is not subject to seizure and is essential for life. Human consumption of water takes priority over any other use.’100 The Constitution of Colombia of 1991, revised in 2013, recognises a number of key socio-economic rights including the right to housing and the right to a healthy environment.101 Although the right to water is not expressly enshrined, the bill of rights of the Brazilian Constitution of 1988, revised in 2015, states that ‘[e]ducation, health, nutrition, labour, housing, transport, leisure, security, social security, protection of motherhood and childhood and assistance to the destitute are social rights’.102 The Constitution of Argentina103 provides that everyone has the right to a healthy, balanced environment fit for human development and requires the state to provide for the rational use of natural resources.104 The Constitution of Honduras of 1982, revised in 2013, also recognises socio-economic rights including the right to protection of one’s health and the right of ‘access

S27(1) of the South African Constitution enshrines the right of everyone to have access to ‘sufficient food and water’ while s43(1)(c) of the Kenyan Constitution couches it as the right to ‘clean and safe water in adequate quantities’. 93 S30 of the Malawian Constitution and Art. 39 of the Ugandan Constitution. 94 See Art. XXI. 95 Art. 35(3). 96 Art. 21(1)–(2). 97 Art. 8(3). 98 Art. 12. 99 Art. 61. 100 Art. 15. 101 Arts. 51, 49 and 79. 102 Art. 6. 103 1853, reinstated in 1983, revised in 1994. 104 Art. 41. 92

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to water and sanitation’.105 Furthermore, it expressly states that the enjoyment and use of water ‘shall be equitable with preference to human consumption’.106 Even in Europe, some constitutions recognise socio-economic rights linked to the right to water. For example, Article 23 of the Belgian Constitution of 1921, revised in 2014, recognises the right ‘to lead a life in keeping with human dignity’, which includes the right to social security, health care, decent accommodation and healthy environment, and to cultural and social fulfilment. The Constitution of Finland of 1999, revised in 2011, recognises several socio-economic and cultural rights, including the right to a healthy environment.107 In its bill of rights, the Constitution of the Netherlands of 1815, revised in 2008, places obligations on public authorities ‘to secure the means of subsistence of the population’, ‘to keep the country habitable’, ‘to protect and improve the environment’ and ‘to promote the health of the population’.108 From Asia, Article 36 of the Constitution of Fiji of 2013 requires the state to ‘take reasonable measures within its available resources to achieve the progressive realisation of the right of every person to be free from hunger, to have adequate food of acceptable quality and to clean and safe water in adequate quantities’.109 In India, the right to access to water has been read into the right to life.110 Article 28H of the Constitution of Indonesia111 provides that every person has the right ‘to live in physical and spiritual prosperity, to have a home and to enjoy a good and healthy environment’. The foregoing shows that domestic constitutions, especially those adopted or revised after the 1990s, are increasingly recognising access to water either as an independent right or as an aspect of other socio-economic rights. If more states were to recognise the right to water in their constitutional traditions and practices, and if states demonstrated their intention to be bound by it, there would be more scope for claiming that this right has gained the status of customary international law.

4.5 Conclusion Strictly speaking, the right to water is recognised neither in international law nor in regional human rights systems as a full independent human right. At most, the right to water is recognised as a derivative right or in a fragmented fashion in a number of treaties. This makes it difficult even to classify it as a new human right. One could perhaps say that the right to water is still in the process of evolution and in search of full formal legal recognition. This conclusion might seem somewhat puzzling given that most people believe that the right to water is a fundamental right and the UN General Assembly has declared in its resolutions that the right to water is a human right. One of the reasons why the right to water has not yet received unequivocal and comprehensive legal recognition in international law along with other socio-economic rights has to do with the fact that access to water was not as pressing a need as was access to other needs such as housing, health care, social security and education when the international human rights system was being developed and the international bill of rights Art. 145. Ibid. 107 S20. 108 Arts. 20–22. 109 This provision falls under the bill of rights. 110 Supreme Court of India, A.P. Pollution Control Board II v. Prof. M.V. Nayudu & Others, Civil Appeal No. 368–373 of 1999. 111 1945, reinstated in 1959, revised in 2002. 105

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was being drafted. This is perhaps why even as socio-economic rights were being recognised in the 1960s, the right of access to water was not enshrined as an independent, self-standing right in the ICESCR or regional treaties. To its credit, the CESCR in its General Comment No. 15 has significantly enhanced the status of the right to water in international law, although the General Comment is not legally binding. In the absence of a treaty that unambiguously recognises this right as a justiciable right, much will thus depend on how the CESCR and regional human rights courts decide complaints involving the right to water. It is encouraging, however, that a growing number of international and regional treaties recognise various aspects of the right to water in various guises. Also encouraging are developments at the domestic level where recent constitutions around the world have increasingly recognised socio-economic rights in general and the right of access to water in particular. These developments suggest that we are on the cusp of consolidating and fully affirming the right to water in international law.

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5 Something Old, Something New, Something Borrowed and Something Blue Lessons to Be Learned from the Oldest of the ‘New’ Rights – the Human Right to Water Pierre Thielbörger

5.1 Introduction Water1 is as old as life. If we believe Genesis 1:1,2 water is even older than life, older even than day and night. Not quite as old, but still certainly not recent, is the demand that basic human water needs should be reflected in the recognition of a human right to water.3 It is thus somewhat surprising to find the right to water included in a book that is dedicated to new human rights. Why has it taken so long for the human right to water to be recognised, given that the human need for water is so essential and so old? Danwood Chirwa has provided an insightful account of the extent to which the right to water can be understood as a new human right. He has carefully traced recent developments with regard to the recognition of the right to water, not only in international but also in European and national law. I agree with Dan that when discussing the human right to water, too much focus has been put on the level of international law while important developments in national and regional law have been followed much less. That is one of the reasons why I have phrased my own approach to the topic previously as ‘The Right(s) to Water: The Multi-Level Governance of a Unique Human Right’.4 I will not repeat the examination and enumeration of the different levels of recognition in different legal orders here5 – Dan has given an up-to-date overview as to where the right to water currently stands in different legal regimes. I agree with Dan on most of his findings. However, I will add a few thoughts that elaborate Dan’s general account further while tailoring my own account more to the overall topic of the book. I will particularly identify ways in which the human right to water is unique (and should 1

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‘Old’ like the demand for a human right, ‘new’ like the recent UN recognitions, ‘borrowed’ as in derived from other human rights, and ‘blue’ like its depiction in most literary accounts: water. Gen. 1:1–1:2: ‘In the beginning, God created the heavens and the earth. The earth was without form and void, and darkness was over the face of the deep. And the Spirit of God was hovering over the face of the waters.’ For an early political declaration along these lines, see United Nations, Report of the United Nations Water Conference (Mar del Plata, 1977), p. 66; for an early and very influential pledge for the recognition of a human right to water, McCaffrey, ‘A Human Right to Water: Domestic and International Implications’ (1992) 5 Georgetown International Environmental Law Review 1–24. P. Thielbörger, The Right(s) to Water:  The Multi-Level Governance of a Unique Human Right (Heidelberg: Springer 2014). See ibid., chapter  1, ‘The Current Legal Status of the Right to Water’, pp.  9–94, providing detailed examples from different approaches in national legal orders (Germany, Belgium, France, India and South Africa) as well as European law and international law.

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not be compared to other new human rights), but will at the same time discuss ways in which the right to water is a prototype of a new human right. This latter endeavour helps us to identify lessons to be learned from the right to water’s success in recent years when discussing the establishment of other new human rights. Dan has not addressed this point much (probably for reasons of space), but in my view this is where the human right to water can most significantly contribute to the broader discussion on new human rights.

5.2 The Eternally ‘New’ Human Right to Water? First, one could very well question whether the right to water still deserves the label of a ‘new’ right. Its legal recognition or discovery – depending on whether you follow a positivist or natural line of argument, as Dan points out correctly6 – can be traced back in times of armed conflict to its mention in international humanitarian law7 in the late 1940s and in peacetime at least to the Mar del Plata Declaration of the late 1970s.8 If all this time later we still consider water a new human right, it must thus be considered one of the oldest of these ‘new’ rights. Will the right to water be eternally new, or will it lose the label of ‘newness’ at some time (soon)? How long can a human right credibly be considered ‘the new kid on the block’? There is, in my view, no answer to this question in numerical terms. Some rights remain new longer than others. I would argue that we must assess the ‘newness’ of a right at least in part by the (changing) level of acceptance or contestation the right has recently experienced. If a right has been very recently pronounced for the very first time (be it in the form of a treaty or through new custom), this right will likely be contested. Thus, a right established in a new treaty or evidenced through changed state practice or recently pronounced opinio iuris is almost automatically ‘new’. At least, hardly any new right has ever been accepted unilaterally from the very beginning without contestation. In turn, this also means that some rights can remain new for rather a long time. Some rights are heavily contested from the very beginning and remain contested for a very long time. As long as the level of a right’s acceptance is in motion – or alternatively as long as the accepted normative content is changing – we might consider such a right as new. Thus my proposal is to assess the ‘newness’ of a right not by the first moment in time when the possibility of such a human right was mentioned (in the case of the right to water many decades ago), but rather by questioning to what degree the acceptance of a human right (independent of the age of its original conception) has been changing recently. Following this approach to newness would allow us to see the right to water as new even in 2018.

5.3 The Unique Moral Imperative behind the Right to Water Dan rightly alludes to a lot of criticism that new rights, in particular socio-economic rights, have experienced.9 Critics say that they are too expensive or impossible to

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See D. Chirwa, in this volume, pp. 56f. See e.g. Arts. 89 and 127 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) 75 UNTS 287; Art. 52(2) and (3)(b) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3; Arts. 5(1)(b) and 14 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609. United Nations, Report of the United Nations Water Conference 1977, E/CONF.70/29, Resolution II (Community Water Supply), preamble, p. 66. See Chirwa, in this volume, pp. 57ff.

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realise,10 that they are redundant and have no added value vis-à-vis existing state obligations or other rights,11 or that they are too vague to be enforced judicially:12 thus, they should rather be seen as policy aspirations rather than rights, so the argument goes. As socio-economic rights are his particular field of expertise, Dan offers a very compelling account why all these arguments are not convincing.13 I agree with Dan that these critical voices have become less prominent in the literature than they were some twenty years ago, although I  do not quite share Dan’s optimism that economic, social and cultural rights are now ‘fully recognised as full rights’.14 Of course, this depends on what Dan means by the terms ‘fully recognised’ and ‘full rights’. However, I would disagree to the extent that this implies that all states, and eminent scholars, accept and embrace economic, social and cultural rights as being equal to civil and political ones. In my view, the position of some of the harshest critics has not changed: the USA has not ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), despite having signed it in 1977.15 I also doubt very much this will change in the coming years, in particular given the 2019 US government’s attitude to the welfare state; just think of the Trump administration’s approach to health care. If a changed US approach to socio-economic rights (and human rights in general) can be observed, it is rather one of even greater distance than proximity, as the US withdrawal from the Human Rights Council in 2018 clearly indicates.16 While this might seem to be a pessimistic outlook for the future of economic, social and cultural rights (one might argue many of them will remain new for longer than we might want), there is a beacon of hope for the right to water specifically. In many ways the human right to water is unique and clearly to be distinguished from other human rights.17 One unique feature of the right to water is the moral force by which its establishment is driven:  water is simply essential for human survival. Any accusation by the establishment of it being a ‘luxury right’ – which other new rights in this edited collection might face – is a priori inappropriate. One can see this in the way critics of the right to water phrase their concerns, namely as a ‘slippery slope’ argument: ‘if we accept a human right to water, what is next? A right to internet access?’,18 so the argument goes. However, nobody has put the argument forward that access to water itself should not be protected through a rights-based approach. Quite the contrary, the importance 10

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E. W. Vierdag, ‘The Legal Nature of the Rights Granted by the International Covenant on Social, Economic and Cultural Rights’ (1978) 9 Netherlands Yearbook of International Law 69; G. van Hoof, ‘The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views’, in P. Alston and K. Tomasevski (eds.), The Right to Food (Utrecht: Martinus Nijhoff, 1984), p. 98; L. J. MacFarlane, The Theory and Practice of Human Rights (Aldershot: Dartmouth Publishing Co. Ltd., 1985), p. 9. C. Arnold, ‘Analyses of Rights’, in E. Kamenka and A. E. S. Tay (eds.), Human Rights (Port Melbourne: E. Arnold, 1978), p. 77. For a particularly convincing refutation of this position, see R. Wasserstrom, ‘Rights, Human Rights and Racial Discrimination’ (1964) 61 Journal of Philosophy 628. Accusing the right to water explicitly of redundancy, see S. Tully, ‘A Human Right to Access Water? A Critique of General Comment No. 15’ (2005) 24 Netherlands Quarterly of Human Rights 35 at 39–40. M. Cranston, What Are Human Rights? (New  York:  Bodley Head, 1973), p.  67; A. Neier, ‘Social and Economic Rights: A Critique’ (2006) 13(2) Human Rights Brief 1. See Chirwa, in this volume, pp. 58f. See my own (similar) arguments as to why these arguments are not convincing for the right to water specifically at Thielbörger, The Right(s) to Water, pp. 95–108. See Chirwa, in this volume, p. 58. See http://indicators.ohchr.org/. P. Thielbörger and L. Dawson, ‘America (and its Allies) First – Human Rights Second: On the US’ Decision to Leave the UN Human Rights Council’ (2018) Bofaxe No. 509E. A. Cahill, ‘The Human Right to Water – a Right of Unique Status: The Legal Status and Normative Content of the Right to Water’ (2005) 9 International Journal of Human Rights 389. See Tully, ‘A Human Right to Water?’, 37. Funnily enough, while this example was used as a deterrent some ten to fifteen years ago, in time of unstoppable digitalisation the discussion has become a very real proposal by now, see for instance chapters by O. Pollicino and B. Çalı, in this volume.

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of water in its life-enabling and life-sustaining character is plainly clear to all observers. In other words, the right to water – different from many other suggested new human rights – would very easily and without any doubt pass the ‘quality control’ for new human rights that Philip Alston demanded more than thirty years ago.19

5.4 The Unique Hybrid Character of the Right to Water The above in turn leads to another special feature of the human right to water, namely its creation through derivation. Dan also discusses this important distinction in his assessment.20 While a new treaty establishing a human right to water would certainly have been favourable in some ways (its superior political significance and undoubted legal enforceability, just to name two), it was only when another (less ambitious) approach was chosen that the right came to shine: deriving the right from other (explicitly accepted) human rights was the right to water’s path to success. The right to water, the way we understand it today, is conceptualised through the technique of legal derivation following General Comment No. 1521 of the UN Committee on Economic, Social and Cultural Rights’ (CESCR) in 2002. Both the UN Human Rights Council (UNHRC)22 and the UN General Assembly (UNGA)23 took a similar approach in 2010. A few words on terminology are necessary: I shall call the right from which another right is derived a ‘parent right’24 rather than a ‘core right’ (as this might be mixed up with the concept of minimum core as developed in CESCR General Comment No. 325) or a ‘primary’ right (as this suggests too strong a hierarchy between parent rights and the right derived therefrom). The right established through this process I will call a ‘derivative right’. This derivation can in theory take three different forms. First, a derivative right can be created from one (rather broad) parent right in order to highlight a specific element of the parent right. This raises, of course, questions of duplication and necessity, but has explicitly been done in Article 11 ICESCR where several ‘including’ rights are listed as specific elements of the right to an adequate standard of living. Second, a derivative right can also be derived from one parent right in order to replace the outdated parent right. The reason behind this would be that such replacement of a right would obtain the consent of the states bound by it, and is easier than the creation of a new treaty. Third, a derivative right can also be established through combining different elements of several different parent rights. The CESCR was unfortunately rather unclear in its General Comment No. 15 as to which mode of derivation it employed when stating that water is a human right ‘contained in’ the

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P. Alston, ‘Conjuring Up New Human Rights:  A Proposal for Quality Control’ (1984) 78 American Journal of International Law 607. See Chirwa, in this volume, p. 56. UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 15: The Right to Water (Arts. 11 and 12 ICESCR), 20 January 2003, UN Doc. E/C.12/2002/11, points 7–9. UNGA, Resolution 15/9 on Human Rights and Access to Safe Drinking Water, 6 December 2010, UN Doc. A/HRC/ RES/15/9, op. para. 3, taking up the language of General Comment No. 15. UNGA, Resolution 54/292 on the Human Right to Water and Sanitation, 3 August 2010, UN Doc. A/RES/64/292, preamble, pointing out that General Comment No. 15 is based on Arts. 11 and 12 ICESCR. See Thielbörger, The Right(s) to Water, p.  109, which is closely linked to the idea of ‘Mutterrecht’ as used by B. Rudolf, ‘Menschenrecht Wasser: Herleitung, Inhalt, Bedeutung, Probleme’, in B. Rudolf (ed.), Menschenrecht Wasser? (Frankfurt: Peter Lang, 2007), p. 26. CESCR, General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1 ICESCR), 11 August 2000, UN Doc. E/C.12/2000/4.

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right to an adequate standard of living (Art. 11 ICESCR),26 ‘inextricably related’ to the right to the highest attainable standard of health (Art. 12 ICESCR)27 and the right to housing and food (both Art. 11 ICESCR), and should also ‘be seen in conjunction with’ the right to life (Art. 6 of the International Covenant on Civil and Political Rights (ICCPR)) and human dignity (as mentioned in the preambles of both Covenants). These statements are obviously open for different forms of interpretation, but one will have to assume that the Committee wanted to derive the right (mainly) from Article 11 ICESCR, supported by (or maybe partially also derived from) Article 12 ICESCR. I have argued previously28 that in my view the best way to understand the right to water would be to conceptualise it as a right created through derivation from the right to life (Art. 6 ICCPR), the right to an adequate standard of living (Art. 11 ICESCR) and the right to health (Art. 12 ICESCR) as this best reflects the widely accepted three elements of the right to water’s normative content: if ‘availability’ of water is not ensured, the right to life is challenged; if ‘accessibility’ – both financial and physical – is not given, the right to an adequate standard of living is in danger; and if water ‘quality’ does not meet the required standards, the right to an adequate standard of health is at stake. I have previously labelled this special construct a ‘hybrid’ right.29 That the right to water can be uniquely understood in this way is a result of the fact that it was not included explicitly in the ICCPR or the ICESCR. The strict dichotomy we apply to other human rights – of being either civil-political or socio-economic – can be avoided for the right to water, which approach carries a number of advantages.30 Thus, both the way in which the right to water was construed (namely through legal derivation) as well as the right’s normative content (being partially civil-political, partially socio-economic in nature) certainly deserve to be considered a novelty in international human rights law.

5.5 The Fragmented Evolution of the Right to Water in Treaty Law Having now emphasised two rather unique features of the right to water – the unique moral imperative and its composition as a hybrid right – there are also elements and features which the right shares with other new human rights. Given the success story of the human right to water over recent years, we might ask ourselves: what lessons can other new human rights learn from the right to water? One important insight into the establishment of the right to water is that elements of the right had previously featured in many political declarations and, even more importantly, in several legally binding treaties that are not universal but apply to specific groups. With regard to treaties, while not explicitly mentioned in the two 1966 Covenants (where most people believe the right to water should have been included in the same way as were the rights to food and housing), the right flourished in other areas where its recognition appeared to be most pressing. For groups typically deprived of access to affordable water in acceptable quality, states proved more willing

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CESCR, General Comment No. 15: The Right to Water (Arts. 11 and 12 ICESCR), 20 January 2003, UN Doc. E/C.12/ 2002/11, referring to Art. 11 of the International Covenant on Economic, Social and Cultural Rights, United Nations, Treaty Series, vol. 993, p. 3. Ibid., referring to Art. 12, International Covenant on Economic, Social and Cultural Rights, United Nations, Treaty Series, vol. 993, p. 3. Thielbörger, The Right(s) to Water, pp. 112ff. P. Thielbörger, ‘Re-Conceptualizing the Human Right to Water: A Pledge for a Hybrid Approach’ (2015) 15 Human Rights Law Review 225. Thielbörger, The Right(s) to Water, pp. 112ff.

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to recognise obligations as binding upon them. These groups include, as Dan traces in detail in his chapter,31 prisoners of war,32 women,33 children34 and disabled people.35 The lesson here for those promoting other ‘new’ human rights is not to wait for recognition in an overarching and universal treaty (and maybe even to denounce partial recognitions as a stumbling stone towards that ultimate goal). The history of the human right to water suggests that recognition in fragmented treaties enable rather than hinder the recognition of a universal human right. The same might be said for the recognition of the human right in so many national and regional laws: they also seem to have contributed to, rather than distracted from, the recognition of the right to water at the international level.

5.6 Custom as Catalyst for More Expressed Recognition of New Rights As Dan also points out correctly, before we saw recognition through derivation at the UN level from 2002 onwards, we witnessed many political recognitions and affirmations of the human right to water. The way to a legal recognition of the right to water by derivation in 2002 had been prepared by a series of political affirmations on the matter (each of which, of course, was not legally binding in itself). This began with the Mar del Plata Declaration in 1977, with its recognition twice in one year at the International Conference on Water and Sustainable Development in Dublin36 as well as at the United Nations Conference on Environment and Development in Rio de Janeiro37 in 1992, then confirmed in 1994 in the Programme of Action of the UN International Conference on Population and Development in Cairo,38 included explicitly in the UNGA’s 1999 resolution on the right to development,39 and reaffirmed in 2002 at the World Summit on Sustainable Development in Johannesburg. The peak of this political recognition came in 2010 when both the UNGA40 and the UNHRC41 recognised the right to water explicitly. It is noticeable that while the UNGA resolution still saw a relatively high number of abstentions,42 the UNHRC resolution a few months later was adopted without a vote:43 the trend was clearly moving towards stronger recognition of the right. Previously in 2008, the UNHRC had also appointed an Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation,44 31 32

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See Chirwa, in this volume, pp. 61ff. Art. 26 Fourth Geneva Convention; Art. 89 Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) 75 UNTS 135; Art. 54 Protocol I to the Geneva Conventions. Art. 14(2)(h) Convention on the Elimination of All Forms of Discrimination Against Women, 1249 UNTS 13. Art. 24(2)(c) Convention on the Rights of the Child, 1577 UNTS 3. Art. 28(2)(a) UN Convention on the Rights of People with Disabilities. The Dublin Statement on Water and Sustainable Development, Principle No. 4, available at: www.un-documents .net/h2o-dub.htm. United Nations Conference on Environment and Development, Agenda 21, (Rio de Janeiro, 1992), available at: https://sustainabledevelopment.un.org/content/documents/Agenda21.pdf. UN, Report of the International Conference on Population and Development, A/CONF.171/13 (Cairo, 1994). UNGA, Resolution 54/175 on the Right to Development, 15 February 2000, UN Doc. A/RES/54/175. UNGA, Resolution 64/292 on the Human Right to Water and Sanitation, 3 August 2010, UN Doc. A/RES/64/292. UNGA, Resolution 15/9 on Human Rights and Access to Safe Drinking Water, 6 December 2010, UN Doc. A/HRC/ RES/15/9. Recorded vote of 122 in favour, none against, 41 abstentions; see www.un.org/press/en/2010/ga10967.doc.htm. See UNGA, Resolution 15/9 on Human Rights and Access to Safe Drinking Water, 6 December 2010, UN Doc. A/ HRC/RES/15/9 at the end. UNGA, Resolution 7/22 on Human Rights and Access to Safe Drinking Water and Sanitation, 28 March 2008, UN Doc. A/HRC/RES/7/22.

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whose mandate, when renewed in 2011,45 was as Special Rapporteur on the Right to Water and Sanitation (which mandate continues today). If language means anything, the change in states’ attitudes could not be more explicit. What are all these political affirmations good for – in a legal sense? The answer lies in customary law. Political declarations, just like UNGA resolutions, can be expressions of customary law,46 in particular of opinio iuris. Given the various explicit political declarations promoting the right to water, and in particular the above-mentioned positive vote in the UNGA and its adoption without a vote by the UNHRC in 2010, together with the accepted name change of the special human rights procedure, there can be no doubt anymore that the right to water has a very strong foundation in opinio iuris. Most states have nonetheless been reluctant to accept the right to water as part of custom, mainly because of rather incoherent state practice. I find these arguments not very convincing, or at least no longer up to date, for two main reasons. It is accepted that both elements – state practice and opinio iuris – must be present for a norm of custom to exist (Art. 38 lit. b, Statute of the International Court of Justice (ICJ)). However, the ICJ has also in the past very extensively relied on opinio iuris when determining custom47 and has rather neglected the other element of state practice. That suggests that there is a form of flexibility between the two elements of state practice and opinio iuris when proving a norm of custom: ‘more’ of one element can outweigh ‘less’ of the other.48 Thus, if we find an abundance of opinio iuris in favour of a right to water, we can be less strict when looking at state practice. This, however, does not mean that one element suffices: opinio iuris alone (with no accompanying state practice) is not enough. However, we also have state practice in favour of accepting a human right to water. This can be taken from the fact that when monitoring the fulfilment of Millennium Development Goal (MDG) 7c and Sustainable Development Goal (SDG) 6, all accounts tell us that the targets with regard to water are well on their way to being met, or have been met already.49 State practice thus clearly indicates that access to water is a priority. Together with the abundant opinio iuris we found earlier, we can conclude that the customary right to water is actually not only in statu nascendi, as Dan writes50 (as has been claimed for years if not decades now), but has also arguably by now arisen.51 Applying this to the broader picture of new human rights, I would argue that the customary law side of new human rights is often all too quickly dismissed. Too easily the argument is accepted that opinio iuris, but in particular state practice for such new human rights, cannot be proven and must evolve over a rather long period of time. While we know that such a requirement of a longer time period for custom to arise is legally not correct,52 it is often also worth 45

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UNGA, Resolution 16/2 the Human Right to Safe Drinking Water and Sanitation, 8 April 2011, UN Doc. A/HRC/ RES/16/2. ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), merits, ICJ Reports 1986, p. 14 at 99–100, para. 188. Ibid., paras. 184 and 188. A. Roberts, ‘Traditional and Modern Approaches to Customary International Law:  A Reconciliation’ (2001) 95 American Journal of International Law 757, also referring back to well-known approaches put forward by Kirgis and Tasioulas. See for instance the recent report by the WHO/UNICEF Joint Monitoring Program for Water Supply, Sanitation and Hygiene (JMP), 2017 Update and SDG Baselines, www.unwater.org/publications/whounicef-joint-monitoringprogram-water-supply-sanitation-hygiene-jmp-2017-update-sdg-baselines/, pp. 58ff. See Chirwa, in this volume, p. 69. Thielbörger, ‘Re-Conceptualizing the Human Right to Water’. ICJ, North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark), ICJ Reports 1969, p. 3 at 44, para. 74.

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checking whether state practice might be sufficient for the custom to be accepted, in particular if strong opinio iuris can be shown and we allow for a more flexible understanding of custom.

5.7 Remaining Challenges I have referred in this chapter several times to the right to water as a success story. General Comment No. 15 must be seen as one of the most influential of its kind, and the progress we have seen with regard to realising the right to water since 2010 is enormous. However, some problems persist and many questions are still open. Both Dan and I have looked in our chapters at (drinking) water almost exclusively. The bigger challenge, however, lies within the related topic of sanitation. We are very clearly failing on sanitation, as the recent monitoring of the MDGs clearly indicates.53 We have a sanitation crisis much more than a water crisis. One of the related questions then seems to me to be whether the right(s) to water and sanitation should be seen as one right or two separate rights. I have discussed this topic at length elsewhere,54 but the short version is that there are good reasons for both approaches. I favour the approach of two human rights, as I mainly understand their legal origins as being fundamentally different and I see the risk of overburdening the scope of the human right to water if it also includes the significant topic of sanitation. The proposal to treat the two rights differently does not mean, however, that the two should always be treated separately: there are good reasons to combine them on many occasions, be it within the mandate of the Special Rapporteur or within the scope of the SDGs (as is done within SDG 6). This question is relevant for the broader debate on new human rights, as proponents of new rights must ask themselves whether to combine different causes and different potential new rights (in order to join forces) or whether a differentiated approach is better. I would argue for the latter – for each individual new human right proponents must make a compelling case, and each of them individually must pass Alston’s quality control test mentioned earlier. To give a concrete example, I doubt that General Comment No. 15 would have had the impact it did have if it had aimed at water and sanitation together. The time for a more explicit recognition (albeit in derivative form) for water as a human right was ripe – this was not the case for sanitation in 2002. A second important question that requires further thought and research is the involvement of actors other than states in the process of forming new rights. As we know from the success of Ruggie’s United Nations Guiding Principles,55 it was the involvement of private actors – and in particular businesses – that led the Principles to success where previous initiatives had failed. Similarly, it is no coincidence that the previous Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation, Catarina de Albuquerque, chose the topic of the private sector as one of her areas of focus in 2009/2010.56 She also actively 53

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See for instance the MDG Report 2015, available at www.un.org/millenniumgoals/2015_MDG_Report/pdf/MDG%20 2015%20rev%20(July%201).pdf, according to which ‘globally, 147 countries have met the drinking water target’ and only ‘95 countries have met the sanitation target’ (p.  7), meaning that in 2015 2.4 billion people were still using unimproved sanitation facilities, including 946 million people who were still practising open defecation (p. 58). This means the MDG target on sanitation is lagging behind most other MDG targets. Thielbörger, The Right(s) to Water, pp. 120ff. J. Ruggie, Protect, Respect and Remedy:  A Framework for Business and Human Rights:  Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises (2008). See the Independent Expert’s annual report of that year with a focus on this topic: A/HRC/15/31 of 29 June 2010, available at https://undocs.org/pdf?symbol=en/A/HRC/15/31.

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involved the private sector in the drafting work of her report. The Independent Expert made clear in her report on the matter that the private sector was a partner, not an adversary, when realising the human right to water, and that without private investment, a realisation of the right to water would remain out of reach. I suggest this as a second lesson for those promoting new human rights: the involvement of, and conversation with, not only those in favour of such new human rights, but also those most critical of them, is important. This applies equally to states and non-state actors.

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6 The Human Right to Adequate Housing and the New Human Right to Land Congruent Entitlements Miloon Kothari

6.1 Introduction The starting postulate of this chapter is that the articulation of the right to adequate housing and the right to food1 at the United Nations since 1995 is one of the factors that has led to greater acceptance of the right to land – a human right that is not found in any of the ‘hard law’ international human rights instruments. As explained below, subsequent to the work on housing and food, particularly since 2010, the right to land figures increasingly in soft law instruments emerging from the United Nations (UN) human rights system. The right to adequate housing (RAH) and related rights, including the right to land, have received significant development. One strand of this development has led to increasing recognition  – the right has featured prominently in global conferences (including the Conferences on Human Settlement, Habitat II in Istanbul (1996) and Habitat III in Quito (2016)), and has been invoked by various court judgments as well as bodies of the UN, in which the author of this chapter served in his capacity as Special Rapporteur on Adequate Housing, and he thus has contributed to this development himself (see Section 6.2). Second, the RAH and related rights have been increasingly used as an advocacy tool by social movements and campaigns across the world. This chapter will review the development of the RAH with a particular emphasis on the specific and necessary link with the right to land. It will detail the many dimensions of the right to land and the nature of its content as articulated by different UN bodies, including Special Rapporteurs, treaty bodies and UN agencies. After presenting the many dimensions of, conditions of and threats to land rights as well as demonstrating the impact of non-recognition of land rights on specific groups, the chapter concludes with the main arguments for the recognition by the UN of the right to land as a distinct, stand-alone human right.

6.2 The Right to Adequate Housing in International Human Rights Law On a global level, the right to adequate housing is recognised as part of the right to an adequate standard of living in Article 25 of the Universal Declaration of Human Rights (UDHR) and 1

While this chapter focuses on the normative development of the right to adequate housing, a similar treatment of the substantive evolution of the right to food is necessary to complete the argument that these human rights have significantly contributed to our current understanding of the complexity and promise of land as a distinct human right.

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Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) (‘the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing’).2 It has been established as a free-standing human right through numerous resolutions, reports and interpretive instruments,3 especially the Committee on Economic, Social and Cultural Rights (CESCR) General Comment No. 4 (1991),4 which was further specified by General Comment No. 7 (1997) on forced evictions.5. In April 2000 the UN Commission on Human Rights created the mandate of a UN Special Rapporteur on Adequate Housing.6 Three successive Special Rapporteurs7 have since contributed through reports and country missions8 to the identification of problems and the search for solutions, and have thus helped in further shaping the contours of the RAH. The thematic reports from 2000 to 2018 have covered the following issues: discrimination and segregation; impact of globalisation; the right to water; indicators on the RAH; forced evictions; homelessness; women and their RAH; the need for the recognition of the right to land as a human right; the global financial crisis; climate change; impact of mega-events; migration; post-conflict and post-disaster reconstruction; mapping and framing security of tenure; responsibilities of local and sub-national governments; right to life and the RAH; financialisation of housing; rights of the disabled; and the right to housing of residents of informal settlements.9 The first UN Special Rapporteur defined the RAH as the ‘right of every woman, man, youth and child to gain and sustain a safe and secure home and community in which to live in peace and dignity’.10 Essential elements of the right as identified by the CESCR’s General Comment No. 4 comprise: (a) Legal security of tenure; (b) Availability of services, materials, facilities and infrastructure; (c) Affordability; (d) Habitability; (e) Accessibility; (f) Location; and (g) Cultural adequacy. Further additions to the list of essential elements were made by the first Special Rapporteur: (h) Public goods and services; (i) Environmental goods and services (including land and water); (j)  Freedom from dispossession; (k)  Information, capacity and capacity-building;

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UNGA, Resolution 217A, 10 December 1948, UN Doc. A/810; International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, in force 3 January 1976, 993 UNTS 3. See also Art. 14(2)(d) Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), New York, 18 December 1979, in force 3 September 1981, 1249 UNTS 1 and Art. 27(3) Convention on the Rights of the Child (CRC), New  York, 20 November 1989, in force 2 September 1990, 1577 UNTS 3. Art. 28(1) Convention on the Rights of Persons with Disabilities (CRPD), New York, 13 December 2006, in force 3 May 2008, 2515 UNTS 3 also treats it as part of the right to an adequate standard of living while Art. 28(2)(d) expressly obliges State Parties ‘to ensure access by persons with disabilities to public housing programmes’. B. Saul, D. Kinley and J. Mowbray (eds.), The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials (Oxford: Oxford University Press, 2014), pp. 861–967. CESCR, General Comment No. 4: The Right to Adequate Housing (Art. 11(1) ICESCR), 13 December 1991, UN Doc. E/1992/23, para. 1 CESCR, General Comment No. 7: The Right to Adequate Housing (Art. 11(1) ICESCR): Forced Evictions, 20 May 1997, UN Doc. E/1998/22. CHR, Resolution 2000/9 on Question of Realization in All Countries of the Economic, Social and Cultural Rights Contained in the Universal Declaration of Human Rights and in the International Covenant on Economic, Social and Cultural Rights, and Study of Special Problems which the Developing Countries Face in Their Efforts to Achieve These Human Rights, 17 April 2000, UN Doc. E/CN.4/RES/2000/9. Miloon Kothari, India (2000–2008), Raquel Rolnik, Brazil (2008–2014), Leilani Farha, Canada (since 2014). For the complete list of countries where official UN missions were carried out, see www.ohchr.org/EN/Issues/ Housing/Pages/CountryVisits.aspx. See www.ohchr.org/EN/Issues/Housing/Pages/AnnualReports.aspx. See UNHRC, Report of the Special Rapporteur on Adequate Housing, Miloon Kothari, 13 February 2008, UN Doc. A/HRC/7/16, para. 4.

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(l) Participation in decision-making; (m) Resettlement; (n) Safe environment; and (o) Security (physical) and privacy.11 The UN Special Rapporteurs have also developed global standards to assist governments at all levels. These instruments offer a step-by-step guide to governments and third parties on how to safeguard people’s RAH. They include: (a) Guidelines on Segregation and Discrimination;12 (b)  Basic Principles and Guidelines on Development-Based Evictions and Displacement;13 (c)  the Guiding Principles on Security of Tenure;14 and (d)  Core Principles of Rights-Based Upgrading of Informal Settlements.15

6.3 The Right to Adequate Housing and Land Rights 6.3.1 The Conceptual and Practical Link Guidelines (b) and (c) respectively underline the inseparable connection of the RAH with land rights. The same goes for Guideline (a) when it comes to discrimination against particularly vulnerable groups. As early as 1991, the CESCR had identified seven common factors of the RAH and the right to land, the first one being the legal security of tenure.16 While security of tenure takes a variety of forms, including (public and private) rental accommodation, cooperative housing, leased property, owner-occupation, emergency housing and informal settlements, it also refers to security of rights over land. The Committee noted that:  ‘discernible governmental obligations need to be developed aiming to substantiate the right of all to a secure place to live in peace and dignity, including access to land as an entitlement.’17 It added that ‘[w]ithin many States Parties increasing access to land by landless or impoverished segments of the society should constitute a central policy goal.’18 That the realisation of the RAH cannot be examined in isolation from land and property considerations became clear during the formative years of the mandate of the first Special Rapporteur on Adequate Housing, including during the country missions to, inter alia, Afghanistan, Brazil, Cambodia and Kenya.19 It was also evident, in the copious information available from across the world, that a significant number of obstacles directly related to the RAH stem from the nonrecognition of the human right to land in reality, and are visible in widespread practices such as:  land and property speculation and the unwillingness of states to intervene in the market 11 12

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Ibid., para. 5. CHR, Report of the Special Rapporteur on Adequate Housing, Miloon Kothari, 1 March 2002, UN Doc. E/CN.4/ 2002/59, paras. 37 et seq., 101(b). See UNHRC, Report by the Special Rapporteur on Adequate Housing, Annex 1: Basic Principles and Guidelines on Development-Based Evictions and Displacement, Miloon Kothari, 5 February 2007, A/HRC/4/18. See also the recommendation for state implementation of these Guidelines in Preparatory Committee for the United Nations Conference on Housing and Sustainable Urban Development (Habitat III), Policy Paper 1: Right to the City and Cities, 6 June 2016, UN Doc. A/CONF.226/PC.3/14 and Habitat III Issue Papers, No. 22: Informal Settlements, 31 May 2015 and Habitat III, Pretoria Declaration of the Habitat III Thematic Meeting on Informal Settlements, 3 June 2016, UN Doc. A/CONF.226/PC.3/12. See UNHRC, Report of the Special Rapporteur on Adequate Housing, Raquel Rolnik, 30 December 2013, UN Doc. A/HRC/25/54, para. 5. See UNGA, Report of the Special Rapporteur on Adequate Housing, Leilani Farha, 19 September 2018, UN Doc. A/ 73/310/Rev.1, paras. 7–15. CESCR, General Comment No. 4, ‘The Right to Adequate Housing’, para. 8. Ibid., para. 8(e). Ibid., para. 8(e). See for instance the Special Rapporteur’s country mission reports for Afghanistan, Australia, Brazil, the Islamic Republic of Iran, Kenya, the Occupied Palestinian Territories and Peru. Reports available at www.ohchr.org/EN/ Issues/Housing/Pages/CountryVisits.aspx.

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to ensure that low-income persons can access rental and owner-occupied housing; land occupation/grabbing; land confiscation and expropriation; destruction and deterioration of land; inequality in land ownership; agrarian reform; housing and property restitution in the context of the return of refugees, evicted persons and internally displaced persons; and the inability of states to control the growth and power of land mafias and cartels. In addition to the unwillingness of states to control speculation and commercialisation of land (a basic housing resource), the failure to adopt land reform so that more people might have access to land for housing purposes is a major factor hindering the achievement of the RAH. The conception of land as an entitlement is often necessary for understanding the degree of violation and the extent of realisation of the right to adequate housing. Land, as a housing resource, is a critical element of the RAH.20 Inadequate housing of the poor is often the consequence of their being barred from access to land and common property resources, including building materials and food and fodder necessary to sustain the home. When access is granted to these resources, tenure generally is not. When housing is viewed as the right to a place in which to live in security and dignity, it necessarily encompasses security of tenure and equitable access to land resources. The lack of legal provisions to enable communities to inhabit or own land and to make productive use of natural or common resources presents obstacles to the implementation of the RAH. The right to land and the RAH are, therefore, congruent entitlements. Land is often a necessary and sufficient condition on which the enjoyment of the RAH is contingent for many individuals and even entire communities. During the course of the mandate of the first Special Rapporteur on Adequate Housing, one of the approaches recommended to the UN Human Rights Council, following lessons learnt from the first six years, was the need for much greater recognition to be accorded to the right to land as a human right.21 The Special Rapporteur on Adequate Housing urged the Human Rights Council to: ‘Recognize the right to land as a human right and strengthen its protection in international human rights law. Given the magnitude of homelessness and landlessness across the world such recognition would promote the right to adequate housing, including protection against forced evictions.’22 This was the first instance of a UN Special Rapporteur approaching the UN Human Rights Council asking it to consider taking steps to make up for what he saw as a normative gap in international human rights law. The work on land rights has also been advanced by the Special Rapporteur on the Right to Food23 and the recent adoption, by the UN General Assembly, of the UN Declaration on the Rights of Peasants and Other People Working in Rural Areas.24 20

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See for instance CHR, Report of the Special Rapporteur on Adequate Housing (Annual Report), Miloon Kothari, 25 January 2002, UN Doc. E/CN.4/2001/51, para. 44, CHR, Report of the Special Rapporteur on Adequate Housing (Annual Report), Miloon Kothari, 1 March 2002, UN Doc. E/CN.4/2002/59, para. 49; CHR, Report of the Special Rapporteur on Adequate Housing (Annual Report), Miloon Kothari, 3 March 2005, UN Doc. E/CN.4/2005/48, paras. 41, 57; CHR, Study by the Special Rapporteur on Adequate Housing, Miloon Kothari: Women and Adequate Housing, 25 February 2005, UN Doc. E/CN.4/2005/43, para. 61; CHR, Report by the Special Rapporteur on Adequate Housing: Women and Adequate Housing, Miloon Kothari, 27 February 2006, UN Doc. E/CN.4/2006/118, paras. 8, 29, 87. See UNHRC, Report of the Special Rapporteur on Adequate Housing, Miloon Kothari, 13 February 2008, A/HRC/7/16. See recommendations contained in UNHRC, Report of the Special Rapporteur on Adequate Housing, Miloon Kothari, 5 February 2007, UN Doc. A/HRC/4/18, para. 33(e). See in particular UNHRC, Report of the Special Rapporteur on the Right to Food, Olivier De Schutter, Addendum: Large-Scale Land Acquisitions and Leases, 28 December 2009, UN Doc. A/HRC/13/33/Add.2. For progress on this instrument, including the involvement of global civil society, see www.ohchr.org/EN/HRBodies/ HRC/RuralAreas/Pages/3rdSession.aspx. See also op. cit. note 40.

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6.3.2 Landlessness and Homelessness Two phenomena frustrate the practical realisation of the RAH in concomitance with the right to land: landlessness and homelessness. Inequality in global land ownership plays a central role as a barrier to tackling these phenomena. Of all the private land in the world, nearly three quarters is estimated to be controlled by just 2.5 per cent of all landowners. An average of 71.6 per cent of rural households in Africa, Latin America and Western and East Asia (excluding China) are landless or near landless. This interlinked problem ranges across the world from absolute landlessness and absolute homelessness to varying degrees of tenure insecurity, restricted access to marginal and lowquality land, inadequate and insecure housing and living conditions, lack of livelihood options, poor health, hunger and food insecurity, to acute poverty. The violations that affect access and entitlement to land also have an impact on housing security and are among some of the most important causes of homelessness. Being landless, or surviving on inadequate land with lack of secure tenure, has a direct bearing on people’s ability to access adequate and secure housing. Without the adequate legal recognition of individual as well as collective land rights, the RAH, in many instances, cannot be effectively realised. As argued by the first UN Special Rapporteur on Adequate Housing, land is a critical aspect of the bundle of rights that protect the survival and livelihood of people and communities. For millions of people all over the world, especially in rural areas, land is the principal resource for survival. This dependency on land is not limited to tribal or indigenous populations but encompasses small and marginal farmers and the rural agricultural labour that depends on land for their livelihood. The failure by governments to either adopt land reforms or implement the existing statutes, and the failure to arrest speculation and the commercialisation of land, has, today, resulted in a situation where evictions, landlessness and homelessness are increasing. Extensive studies demonstrate that groups are severely affected by the lack of access to land rights and the life-giving value of the attainment of these rights – including indigenous populations, peasants and small farmers as well as descent- and work-based communities.25 A lack of adequate affordable housing underlies both rural and urban homelessness and landlessness. While housing costs are lower in rural areas, so are rural incomes, leading to similarly high rent burdens. Given the indivisibility of human rights, many rights like the rights to livelihood, employment, land, food, health and adequate housing have to be viewed as necessarily interlinked. In addition, since the two phenomena of landlessness and homelessness are interrelated, one cannot be treated in isolation from the other. Addressing problems with regard to housing and land through vertical programmes focuses too narrowly on specific needs. For example, the failure by states to protect the rural economy of small farmers leads to forced migration to cities, exacerbating an already dire housing situation. The first Special Rapporteur urged attention to the importance of recognising the principle of indivisibility of human rights.26 In this connection, he welcomed the adoption of the Voluntary Guidelines to Support the Progressive 25

26

UNHRC, Report of the Special Rapporteur on Adequate Housing, Miloon Kothari, 13 February 2008, UN Doc. A/ HRC/7/16, paras. 74–75; UNHRC, Preliminary Study of the Human Rights Council Advisory Committee on the Advancement of the Rights of Peasants and other People Working in Rural Areas, 18 February 2011, UN Doc. A/ HRC/16/63, paras. 6–8, 25, 69; UNHRC, Final Study of the Human Rights Council Advisory Committee on the Advancement of the Rights of Peasants and other People Working in Rural Areas, 24 February 2012, UN Doc. A/HRC/ 19/75, paras. 12, 23, 24, 31. CHR, Report by the Special Rapporteur on Adequate Housing, Miloon Kothari: Women and Adequate Housing, 27 February 2006, UN Doc. E/CN.4/2006/118, para. 8.

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Realization of the Right to Adequate Food in the Context of National Food Security by the Council of the Food and Agriculture Organization of the United Nations, and he encouraged governments to take note of guideline 8b27 addressing land and tenure security. The priority given to land and agrarian reform has been declining in most countries, even those that are largely rural. The lack of political will to address these issues has given rise to well-organised movements of landless peasants and rural workers who are bringing land reform to national and international policy debates. These movements are putting forth sustainable alternatives and are growing rapidly around the world, from Brazil and Bolivia, to Honduras and Nicaragua, to South Africa and Indonesia. The Special Rapporteur in his reports encouraged governments to work together with civil society movements in the development of comprehensive approaches to promoting the realisation of the RAH, including policies and programmes that address land security where it is essential for the realisation of the right.28 The argument put forward by the first Special Rapporteur was that the two rights need to be viewed holistically and that a deeper understanding of their inherent linkages is necessary to strengthen the policy and legal interventions necessary to promote these rights, which are essential to survival and livelihood.29 A recent legislative development in India reinforces this link between the two human rights and the critical importance of recognising entitlements to both human rights in the same instrument. Several states in India have adopted ‘Homestead Acts’ that recognise the RAH and the right to land of landless and marginalised communities.30 6.3.3 Land-Grabbing, Forced Evictions and the Right to Housing and Land The failure of states to provide legal security of tenure and to legally recognise the land and housing rights of communities makes these communities vulnerable to forced evictions. Globally, the trend to evict communities in the name of city beautification, urban renewal, industrialisation and development-based activities, including mining or the building of dams and other infrastructure, has been accelerating.31 27

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‘States should take measures to promote and protect the security of land tenure, especially with respect to women, and poor and disadvantaged segments of society, through legislation that protects the full and equal right to own land and other property, including the right to inherit’:  see UN Food and Agriculture Organization, Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security (Rome: FAO Publishing Management Service, 2005), p. 17 (Guideline 8B). UNHRC, Study by the Special Rapporteur on Adequate Housing, Miloon Kothari: Women and Adequate Housing, 26 March 2003, UN Doc. E/CN.4/2003/55, paras. 69–73; UNHRC, Report of the Special Rapporteur on Adequate Housing, Miloon Kothari: Women and Adequate Housing, 27 February 2006, UN Doc. E/CN.4/2006/118, para. 79; UNHRC, Report of the Special Rapporteur on Adequate Housing, Miloon Kothari, 13 February 2008, UN Doc. A/ HRC/7/16, para. 105; UNHRC, Report of the Special Rapporteur on Adequate Housing, Leilani Farha, 22 December 2014, UN Doc. A/HCR/28/62, paras. 7–8. UNHRC, Report of the Special Rapporteur on Adequate Housing, Miloon Kothari, 13 February 2008, UN Doc. A/HRC/7/16, para. 35(c); UNHRC, Report of the Special Rapporteur on Adequate Housing, Miloon Kothari, 5 February 2007, UN Doc. A/HRC/4/18, paras. 25–31; OHCHR, Fact Sheet No. 21/Rev.1: The Right to Adequate Housing (Geneva: United Nations, 2009), p. 8. ‘The Right to Homestead Act’ has been adopted in the Indian States of Madhya Pradesh and Bihar. In 2013 an attempt was also made to adopt a ‘National Right to Homestead Bill 2013’. Following a campaign in 2018 by Ekta Parishad, the Indian National Movement for Land Rights, the Government of India has announced that it will reopen the issue of a national act. For regular updates see https://www.ektaparishad.in. For the text of the Madhya Pradesh ‘Right to Homestead Act’, see http://govtpressmp.nic.in/pdf/extra/2017-03-23-119.pdf. An English summary is available at https:// www.hlrn.org.in/. CESCR, General Comment No. 7: Forced Evictions, para. 7; OHCHR and HRC, Women and the Right to Adequate Housing (Geneva: United Nations Publishing Services, 2012), p. 63.

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States continue to use the powers, often given to them by national law, of ‘eminent domain’ to acquire lands and homes. The use of these powers is often in contradiction to the basic human rights principles of participation and consent of the community in any decision-making that involves upholding their human rights including their housing and land rights. States use land acquisition laws and the doctrine of ‘public purpose’ to exercise eminent domain. The exercise of eminent domain and the cynical use of the doctrine of public purpose for private benefit has become common across the world. Formal laws that give powers of eminent domain to states are also used to override claims to land and natural resources protected by the ‘customary rights’ that indigenous peoples claim. Those groups that are not ‘formal’ property rights holders  – pastoralists, fisher folk, nomads, urban dwellers in addition to indigenous populations  – are disproportionately impacted by evictions. A strong argument can also be made that, for countries that have ratified international human rights law, evictions carried out in accordance with national law can still qualify as forced evictions under international human rights law. In an attempt to counter these trends, and noticing the lack of an operational human rights instrument on the practice of evictions, the Special Rapporteur led a process to draft the UN Basic Principles and Guidelines on Development-Based Evictions and Displacement (the Guidelines).32 The attempt was to develop a universal standard that, through the protection of the RAH and land, could put the brakes on the unfettered, speculative use of land and property. The Guidelines provide operational guidance on protecting people’s and communities’ human rights in the processes before, during and after evictions, displacement and resettlement, with the role of local governments being seen as critical in all three stages identified by the Guidelines. In addition, the Guidelines also call upon states to actively monitor and carry out evaluations to determine the consequences of evictions. States are also called upon to entrust an independent national body, such as a national or local human rights institution, with monitoring and investigating forced evictions and state compliance with these Guidelines and international human rights law. These practices can form elements of national and municipal policies, guidelines and any eviction legislation that is required. There is extensive recognition and substantiation, in the context of forced evictions and displacement, of the right to land in the Guidelines. In the section on ‘Implementation of State Obligations’ (para. 16) the Guidelines stress the need for states to refrain from confiscating lands if this does not contribute to the enjoyment of the human right to land, such as the implementation of land reform or redistribution for the benefit of vulnerable persons, groups or communities. In the same section (para. 25), the Guidelines urge states, in the context of providing legal protection against forced evictions, to take immediate measures in order to confer legal security of tenure on all those who do not have formal titles to home and land. The Guidelines (para.  26)  stress, with the imperative of equal enjoyment of human rights, that such titles to housing and land are conferred on all women. In the section on human rights safeguards required ‘Prior to Evictions’ (para. 43), the Guidelines urge states to ensure that evictions do not lead to individuals becoming homeless. By adopting all appropriate measures, states must ensure that alternative housing and access to productive land must be made available. In the section of the Guidelines on human rights safeguards ‘After an Eviction: Immediate Relief and Relocation’ (para. 56), states are urged, in the context of compatibility of resettlement with international human rights law, to ensure affected communities are given timely 32

UNHRC, Report by the Special Rapporteur on Adequate Housing, Miloon Kothari, Annex 1: Basic Principles and Guidelines on Development-Based Evictions and Displacement, 5 February 2007, UN Doc. A/HRC/4/18.

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information and allowed full participation in the creation of planning and implementation measures taken towards resettlement. The Guidelines call on states to pay particular attention in this process to the representation of indigenous peoples, minorities, the landless, women and children. In the section on the provision of ‘Compensation’ (para. 60), the Guidelines stipulate that cash compensation should under no circumstances replace real compensation in the form of land and common property resources. The Guidelines state that in situations where land has been taken, the evicted should be compensated with land commensurate or better in quality, size and value. Paragraph 61 urges that compensation should accrue to all those evicted irrespective of whether or not they hold title to their property. Paragraph 63 urges states, in the context of estimation of economic damage, to take into consideration losses of land plots and losses that will accrue from lost wages and incomes. The Guidelines call for compensation to be based on impact and loss assessment to account for the value of business losses, loss of equipment/ inventory, livestock, land and trees/crops, and lost/decreased wages/income. In the section on the ‘Role of the International Community Including International Organizations’ (para. 71), the Guidelines stress that the international community bears an obligation to promote, protect and fulfil the rights to adequate housing, land and property. International financial and other institutions must, therefore, take into account the prohibition of forced evictions under international human rights law. Since their acknowledgement by the UN Human Rights Council in 2007, these Guidelines have increasingly been used by a range of actors across the world.33 Leading academics from across the disciplines, for example, have held up these Guidelines as a global soft law standard that can be of great use in tackling a range of human rights situations. A number of scholars have written about the potential of the Guidelines as a standard that can regulate the functioning of the right to property and support arguments for a human right to property. John G. Sprankling, for example, argues that the Guidelines are an important step in the recognition of an ‘international property law’ imbued with human rights principles in that they ‘delimit the capacity of states and certain non-state actors to conduct largescale evictions of citizens in order to facilitate development projects’.34 Cottier, Gehne and Schutheiss have stated that the right to property is subject to the Guidelines. According to them, the Guidelines recognise the ‘strong links between property in land and other human rights such as the right to adequate housing, self-determination, food, work and security of the person and home”.35 Olivier de Schutter has written about the protective nature of the requirement in the Guidelines to ensure ‘security of tenure’ for peasants as a safeguard against their removal from the lands on which their livelihood depends.36 The Guidelines have been relied on for continuing human rights standard-setting based on the importance of the right to land. Some of the examples are included in the set of core principles put forward by the former Special Rapporteur on the Right to Food, Olivier De

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For an overview of the range of uses of the Guidelines, see M. Kothari, The Global Crisis of Displacement and Evictions: A Housing and Land Rights Response (New York: Rosa-Luxemburg Stiftung, 2015), pp. 16–20. J. G. Sprankling, ‘The Emergence of International Property Law’ (2012) 90 North Carolina Law Review 461 at 471. T. Cottier, K. Gehne and M. Schultheiss, ‘The Protection of Property in International Law’, in H. P. Hestermeyer et al. (eds.), Coexistence, Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum (Leiden: Martinus Nijhoff Publishers, 2012), p. 367. O. De Schutter, ‘The Green Rush: The Global Race for Farmland and the Rights of Land Users’ (2011) 52 Harvard International Law Journal 503 at 524, 525ff.

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Schutter, regarding large-scale land acquisitions37 and by the former Special Rapporteur on Adequate Housing, Raquel Rolnik, regarding security of tenure.38 6.3.4 Rural Housing, Urban Housing and the Right to Land While urbanisation worldwide is increasing at an alarming rate, over 3 billion people continue to live in rural areas. The absolute number of rural inhabitants in Africa and Asia is projected to increase over the next thirty years. Given the level of poverty and unemployment in rural areas, the reality is that millions of people live in distressed housing and living conditions. Extreme poverty is far more prevalent in rural areas, where about 75 per cent of the world’s poorest people – around 900 million – live and depend on agriculture for their survival.39 Thus, a specific focus on rural areas remains essential to improve enjoyment of the RAH and the right to land. Land also plays a crucial role in the structural linkages between the realities of rural and urban housing. While migration to urban areas is on the rise, the underlying causes for this movement are not being addressed. Such migration is generally not always voluntary, but is the product of a number of factors, such as extreme rural poverty due to landlessness and growing indebtedness; land insecurity; land conversions; the loss of means of subsistence resulting from a failure to give priority to agrarian reform or promote rural development including rural infrastructure; project-induced displacement; distressed housing; or the takeover of farmland by the state or corporations. The lack of legal recognition of the right to land contributes to these situations. In cities, these migrants are often precluded from accessing adequate housing and are forced to live in slums and other informal settlements characterised by insecure and inadequate living conditions. Around the world the poorest of the poor are often the landless, both in rural and urban areas. Land is normally the main asset from which the rural poor are able to derive a livelihood. When the poor lack adequate housing, this is often the consequence of being barred from access to land, credit and materials with which to build. When access is granted, too often tenure remains precarious and is strictly tied to one’s status as a productive labourer. There is a clear and intrinsic link between access to land and the right to adequate housing. To ensure that the rural housing situation does not continue to be neglected, the following four key concerns need to be taken into account: (1) the manifold violations of human rights, including housing and land rights, that characterise the urban landscape across the world today; (2) that unchecked urbanisation has, in fact, been one of the engines of destruction of the lives and livelihoods of rural populations; (3) the urban bias that has driven development policies across the world and which, if left unchallenged, will lead to further lop-sided investment in urban areas at the expense of rural poverty alleviation; and (4) the viability of rural livelihoods, including those of small farmers, fisher folk and indigenous and tribal peoples, independent of processes of urbanisation.

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UNHRC, Report of the Special Rapporteur on the Right to Food, O. De Schutter, Addendum: Large-Scale Land Acquisitions and Leases, 28 December 2009, UN Doc. A/HRC/13/33/Add.2. See UNHRC, Report of the Special Rapporteur on Adequate Housing, Raquel Rolnik, 30 December 2013, UN Doc. A/HRC/25/54, para. 5. UN Food and Agriculture Organization, International Fund for Agricultural Development and World Food Programme, Joint Paper Prepared for the International Conference on Financing for Development:  Reducing Poverty and Hunger: The Critical Role of Financing for Food, Agriculture and Rural Development, February 2002.

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Given such a grave situation of housing and land rights in both urban and rural areas, it is imperative that the international community pushes for a global consensus on the human rights approach including diligent implementation of constitutional provisions, international human rights instruments and outcomes from World Conferences. Such initiatives need to be built around: • Agrarian reform in rural areas, and land reform and wealth redistribution in both urban and rural areas. • Immediate action to eradicate the existence of land cartels and mafias by evolving laws and policies that ensure the arrest and prosecution of the members of such organisations. • A focus on the RAH in rural areas. The current programme of the Brazilian government for subsidising rural housing is a good example. • The adoption of policies to regularise homes and lands in rural and urban areas. Such a regularisation process should include people and communities who have had no choice but to occupy land in rural or urban areas due to migration induced by economic necessity, as a result of disasters or ethnic or armed conflict. As noted above, recent initiatives in the UN human rights system are building on these linkages. The UN Declaration on the Rights of Peasants and Other People Working in Rural Areas, for example, recognises (Art. 17.1) that: Peasants and other people living in rural areas have the right to land, individually and collectively, including the right to have access to, use and manage land and the water bodies, coastal seas, fisheries, pastures and forests therein, to achieve an adequate standard of living, to have a place to live in security, peace and dignity and to develop their cultures.

Referring to the right to non-discrimination, the Declaration (Art. 17.2) also calls on states to take ‘appropriate measures to remove and prohibit all forms of discrimination relating to the right to land, including those resulting from changes of marital status, lack of legal capacity or lack of access to economic resources’.40 In the urban context, legal recognition of land rights is often critical for protecting the RAH, including access to essential services and livelihoods, especially for the urban poor. Urban and peri-urban areas across the world today are scenes of violations of the RAH due to the inability or unwillingness of the authorities to adequately control land and housing speculation and to reverse the concentration of land ownership and hoarding of property. This phenomenon is also spreading to rural areas. The privatisation of land often leads to land becoming less affordable, which has particularly affected households headed by women. Unaffordability as a result of inadequate regulation of housing and land markets by states has been identified in numerous mission reports as an important issue.41

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The Declaration was adopted by the UN General Assembly on 17 December 2018 following its adoption by the UN Human Rights Council on 28 September 2018. For the text of the Declaration see UNGA, Declaration on the Rights of Peasants and Other People Working in Rural Areas, UN Doc. A/C.3/73/L.30. Available at: https://undocs.org/A/C.3/ 73/L.30. See e.g. UNHRC, Report of the Special Rapporteur on Adequate Housing, Miloon Kothari: Mission to Australia (31 July to 15 August 2006), 11 May 2007, UN Doc. A/HRC/4/18/Add.2, paras. 16–18, 23–29, 30–34.

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6.3.5 The Right to Housing and Land: Discrimination Issues In addition to the brief recognition in the Habitat II Agenda (1996), significant attention was given to housing and discrimination in the Declaration and the Programme of Action adopted at the 2001 Durban World Conference on Racism.42 The Declaration recognised the existence of discrimination in access to housing, along with other economic, social and cultural rights (para. 33), and recommended special measures for victims, including ‘appropriate representation in “Housing” ’ (para. 108). The Programme of Action further recommended developing programmes for people of African descent, allocating additional investment in housing along with other services (para. 8). With regard to migrants, it recommended that host countries consider the provision of adequate social services, in particular in the areas of health, education and adequate housing, as a matter of priority (para. 33) and urged all states to prohibit discriminatory treatment against foreigners and migrant workers, including in the allocation of housing (para. 81). States were urged to recognise the effect of discrimination and to take appropriate measures to prevent racial discrimination against persons belonging to minorities in respect of employment, housing, social services and education; in this context, forms of multiple discrimination should be taken into account (paras. 48 and 49). Under the section ‘Action-Oriented Policies and Action Plans’, the issue of housing was expressly highlighted along with other social services. The Programme of Action urged states to promote residential integration of all members of society at the planning stage of urban development schemes and other human settlements, as well as during renewal of neglected areas of public housing, so as to counter social exclusion and marginalisation (para. 102). It further requested that states collect reliable statistical data on housing (para. 92)  and establish national programmes and measures to promote the access to social services, including adequate housing, of groups of individuals who are or may have been victims of discrimination (para. 100). Keeping these developments in mind, in 2002 the first Special Rapporteur on Adequate Housing proposed guidelines43 for states that contain recommendations that can be adopted by local authorities. In these guidelines, the Special Rapporteur addressed the close connection between housing and land rights by, inter alia, recommending that states ‘enact or strengthen legislative measures that prohibit racial discrimination in all areas of the public and private sectors, including housing, planning and land policies and provision of building materials, services and housing finance’ (para. 46(a)). Furthermore, he encouraged states (para. 46(k)) to: institutionalize ethical housing, land-use and planning practices, including the preparation of city and regional master plans, such that segregated residential patterns and discrimination in facilities do not form based on group identity of race, colour, descent, national and ethnic origin – as well as religion. Moreover, it is essential that in the formulation and implementation of these plans, residents enjoy the right to participation, including through participatory budgetary processes, on a basis of non-discrimination and equality.

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See Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Declaration and Programme of Action, August–September 2001, UN Doc. A/CONF.189/12. See also the contribution to the Durban Conference by the first Special Rapporteur on Adequate Housing, Miloon Kothari, UN Doc. A/ CONF.189/9, paras. 10, 11, 13, 15–17. This is a revised summary of the full discussion and Guidelines contained in Report of the UN Special Rapporteur on Adequate Housing: see UNHRC, Report of the Special Rapporteur on Adequate Housing (Annual Report), Miloon Kothari, 1 March 2002, UN Doc. E/CN.4/2002/59, para. 101.

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6.3.6 The Impact on Specific Groups The lack of realisation of the RAH and the right to land affects certain groups specifically. In the following section, the need to protect land and housing rights for women, indigenous peoples, migrants, work and descent-based communities, and victims of discrimination is explored; furthermore, guidelines for protection and standards of state behaviour are drawn from the work of various UN bodies. 6.3.6.1 Indigenous Peoples and Work- and Descent-Based Communities In his 2002 Guidelines, the UN Special Rapporteur also took up the situation of indigenous peoples. Here, the conceptual and practical linkage between land and other human rights is particularly evident. Despite the often sacred relationship with their territories and deeprooted and historical ties, the land and territories of indigenous populations have frequently been appropriated by others. The failure of states to recognise indigenous and other local communities as rightful stewards or owners of the natural resources they cultivate and manage is symptomatic of the neglect of rights of the rural poor. The systematic denial of ownership and collective land rights makes such communities more vulnerable to forced displacement, thereby threatening their livelihoods. The slow progress in demarcation of indigenous land is an obstacle to the legal recognition of community-based property rights for indigenous peoples. A major breakthrough in the recognition of the right to land for indigenous peoples was the adoption of the UN Declaration on the Rights of Indigenous Peoples.44 The Declaration notes (para. 26) that: ‘Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired’ and calls on states to give legal recognition and protection to these lands, territories and resources including through due recognition in their land tenure systems. Land is also of great importance to certain groups that have suffered historic discrimination, whether on grounds of descent, race or colour. For instance, descent- and work-based communities, such as the Dalit in India, continue to face extreme human rights violations, including with regard to land and housing rights. In Brazil, the Afro-Brazilian communities of quilombos (former slave colonies) face discrimination that severely impacts their ability to enjoy the human right to land and adequate housing and forces them to the fringes of mainstream society.45 6.3.6.2 Women The linkage between the RAH and the right to land is also of crucial importance to women when it comes to the question of inheritance and issues of access, tenure and livelihood. In many countries the control and ownership of land by women, especially in rural areas, is critical to their livelihoods, food security, economic independence and physical security, as well as to that of their children. Women, however, own only an estimated 1 to 2 per cent of all titled land worldwide, which is often cited as resulting from low levels of inheritance of property by women.46 With the growing migration of men to urban areas in search of employment in many

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UNGA, Resolution 61/295 on Declaration on the Rights of Indigenous Peoples, 13 September 2007, UN Doc. A/Res/ 61/295. See CHR, Report of the Special Rapporteur on Human Rights, Miloon Kothari: Mission to Brazil, 18 February 2004, UN Doc. E/CN.4/2005/48/Add.3. Women in Development, Bureau for Global Programs, Field Support and Research and United States Agency for International Development, Women’s Property and Inheritance Rights:  Improving Lives in Changing Times. Final Synthesis and Conference Proceedings Paper (2003).

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countries, it is mainly women who continue to farm in rural areas. This rising ‘feminisation of agriculture’ further heightens the importance of guaranteeing women’s land rights. The connection between housing and land rights has been particularly central to the work of the first Special Rapporteur in the area of women’s rights to housing, land, property and inheritance. Following a resolution adopted by the former UN Commission on Human Rights, the Special Rapporteur undertook a four-year study on women’s rights to own property and to adequate housing.47 One of the central conclusions of the report was that the lack of recognition of land rights of women directly affects their RAH.48 The Special Rapporteur highlighted the close link between violence against women and the RAH, and how the recognition of land rights for women could potentially play a positive role against domestic violence.49 The resolutions from the UN Commission on Human Rights that followed these reports recognise women’s land rights.50 On several occasions the Special Rapporteur expressed concern regarding the prevalence of cultural norms and traditions that deprive women of their rights to land, inheritance and property, which in turn prevents them from accessing their RAH. Of particular concern is the reflection of discriminatory cultural and social norms in family or personal law, including uncodified laws. Land rights have been recognised as a central point within the issue of gender equality. Women’s land rights are often dependent on marital status, which makes their security of tenure dependent on relations with their husband. Under national legislations regulating property rights within the family, land rights are often restricted to men as the head of the household who holds exclusive administration rights over family property. As highlighted in a report from the former UN Special Rapporteur on Adequate Housing: In almost all countries, whether developed or developing, legal security of tenure for women is almost entirely dependent on the men they are associated with. Women headed households and women in general are far less secure than men. Very few women own land. A separated or divorced woman with no land and a family to care for often ends up in an urban slum, where her security of tenure is at best questionable.51

A major impetus to the recognition of women’s human right to land occurred with the adoption, in 2016, of General Recommendation No. 34 (GR No. 34) on rural women by the UN 47

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See CHR, Study by the Special Rapporteur on Adequate Housing: Women and Adequate Housing, Miloon Kothari, 26 March 2003, UN Doc. E/CN.4/2003/55; CHR, Study by the Special Rapporteur on Adequate Housing: Women and Adequate Housing, Miloon Kothari, 25 February 2005, UN Doc. E/CN.4/2005/43; CHR, Report by the Special Rapporteur on Adequate Housing: Women and Adequate Housing, Miloon Kothari, 27 February 2006, UN Doc. E/ CN.4/2006/118. On these reports and the regional consultations that contributed to the reports, see OHCHR and UNHRC, Women and the Right to Adequate Housing. In addition to the reports cited above, see Proceedings of the Pacific Regional Consultation on ‘Women’s Rights to Adequate Housing and Land’, Our Land, Our Homes, Our Culture, Our Human Rights (New Delhi: HLRN: Habitat International Coalition, 2006). For more details see the report of the regional consultation in New Delhi that contributed to the Special Rapporteur on Adequate Housing’s reports in Proceedings of the Asia Regional Consultation on ‘The Interlinkages between Violence against Women and Women’s Right to Adequate Housing’, available at www2.ohchr.org/english/issues/ housing/docs/interlinkages_VAW_RAH.pdf. See, for example, CHR, Resolution 2004/21 on Adequate Housing as a Component of the Right to an Adequate Standard of Living, 16 April 2004, UN Doc. E/CN.4/RES/2004/21 and CHR, Resolution 2005/25 on Women’s Equal Ownership, Access to and Control over Land and the Equal Rights to Own Property and to Adequate Housing, 15 April 2005, UN Doc. E/CN.4/RES/2005/25. See CHR, Study by the Special Rapporteur on Adequate Housing: Women and Adequate Housing, Miloon Kothari, 26 March 2003, UN Doc. E/CN.4/2003/55, para. 54.

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Committee on the Elimination of Discrimination against Women (CEDAW Committee).52 The CEDAW Committee, in full recognition of the limited rights women have over land and natural resources of and the discrimination they face in relation to land rights, articulates women’s human right to land using several articles of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). In the section of the GR No. 34 on ‘Land and Natural Resources’, the Committee considers ‘rural women’s rights to land, natural resources, including water, seeds and forests, and fisheries as fundamental human rights’. In this section of GR No. 34 the CEDAW Committee calls on states parties to CEDAW to ‘strengthen customary and statutory institutions and mechanisms for defending or protecting women’s rights to land, water and other natural resources’ (para. 58). In the section of GR No. 34 on ‘[l]and and agrarian reform, land acquisition and resettlement’, the CEDAW Committee urges states parties to ‘give priority to rural women’s rights to land when undertaking land and agrarian reforms and consider it a specific and central objective of land reform’. In this section the Committee urges the states parties to ‘Recognise and include rural women’s equal rights to land in any land distribution, registration and titling or certification schemes’ (para. 78(b)). The Committee calls on states parties to give priority in allocation of public lands, fisheries and forests to landless rural women. In the section on housing, the CEDAW Committee calls on states parties to protect women’s rights to housing using measures requiring the protection of women’s human right to land. In this section the CEDAW Committee, in the context of the need for strong measures to protect rural women from forced evictions from their homes and lands, urges states parties to comply with international standards including the Basic Principles and Guidelines on DevelopmentBased Evictions and Displacement.53 The Sustainable Development Goals (SDGs) also recognise the importance of realising women’s land rights. SDG Goal 5, Target 5.a urges states to ‘[u]ndertake reforms to give women equal rights to economic resources, as well as access to ownership and control over land and other forms of property, financial services, inheritance and natural resources, in accordance with national laws’.54

6.4 Conclusion: The Case for the Human Right to Land The normative development of the RAH in both hard and soft law human rights instruments has contributed significantly to the argument for the recognition of land as a human right. The first Special Rapporteur on Adequate Housing stated in his reports55 that he strongly believed that the Human Rights Council should consider devoting attention to the question of the human right to land and promoting its recognition as a distinct human right. In addition to the detailed work on the RAH, a number of developments within the UN system have contributed to create building blocks that justify the recognition of a stand-alone human right to land. As reviewed in this chapter, work under the aegis of the UN Human Rights Council (especially Special Rapporteurs on Adequate Housing, Food and the Rights of Indigenous Peoples, the development of the UN Declaration on the Rights of Indigenous Peoples and the Declaration on the Rights of Peasants and Other People Working in Rural 52

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See CEDAW Committee, General Recommendation No. 34 on the rights of rural women, 7 March 2016, UN Doc. CEDAW/C/GC/34. See Section 6.3.3 on the UN Evictions Guidelines. See www.landportal.org/book/sdgs. See above, Section 6.3 ‘The Right to Adequate Housing and Land Rights’.

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Areas, and the current consideration of a binding treaty on transnational corporations and human rights56) has provided important motivation. The UN Treaty Bodies  – the CEDAW Committee in its General Recommendation No. 34 and CESCR in its current consideration of a General Comment on Land – are also contributing to the recognition of land as a human right through the development of interpretive soft law instruments. UN Agencies such as the UN Food and Agriculture Organization have further contributed to this task through the development of instruments such as the Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security and the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests. As explained in Sections 3.4 and 3.5, UN Agenda 2030, as expressed in the SDGs, have also recognised the land rights in several Goals, including those referring to poverty, gender equality and sustainable cities and communities.57 Most of the developments in the UN system on land rights issues have been advocated by well-organised movements of landless peasants and rural workers who are bringing agrarian reform to national and international policy debates. Human rights defenders who are part of these movements have been undertaking this critical advocacy work often at great personal risk, including to their lives. International human rights movements such as Via Campesina58 and their national counterparts such as Ekta Parishad59 are contributing to the recognition of the right to land. International civil society alliances such as the Food First Information and Action Network (FIAN),60 the Centre Europe-Tiers Monde (CETIM)61 and the Housing and Land Rights Network (HLRN)62 have also made significant contributions. These developments have demonstrated, as recognised by the first Special Rapporteur on Adequate Housing, that the right to land is not linked only to the RAH but is also integrally related to the human rights to food, livelihood, work, self-determination, security of the person and home, and the sustenance of common property resources. Land is a critical aspect of the bundle of rights that protect the survival and livelihood of people and communities. Given the indivisibility of human rights, the rights to livelihood, employment, land, food, health and adequate housing have to be addressed and guaranteed together. Focusing on human rights in isolation rarely addresses the roots of problems, nor does it ensure the complete realisation of any right. The guarantee of the right to land is thus critical for the majority of the world’s population who depend on land and land-based resources for their lives and livelihoods. In addition to normative developments within the UN system on the right to land, the recognition of land as a human right is all the more urgent given the dire state of millions around the world who are dependent on land and land-based resources. Inequitable land ownership patterns and landlessness give rise to a host of interrelated human rights violations that range from inadequate housing and lack of livelihood options, to poor health, hunger and food insecurity, and acute poverty. The growing control of land by corporate enterprises and the accompanying 56

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The development of this new instrument is in its nascent stages and has not been covered in this chapter. It is likely, however, that issues related to land, especially forced evictions and displacement of people and communities due to activities of transnational corporations, will figure prominently in the discussions on and draft articles of the treaty. For excellent and regularly updated information on land rights in relation to the SDGs, including the development of indicators, see https://landportal.org/book/sdgs. For the work of Via Campesina see www.viacampesina.org/en/. See http://www.ektaparishad.in. For the general work of FIAN see www.fian.org/. Also see, in particular FIAN, Position Paper: The Human Right to Land (Heidelberg: FIAN International Secretariat, 2017). See www.cetim.ch/en/. See www.hlrn.org/ and for HLRN India see www.hlrn.org.in/.

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industrialisation of agriculture tend to displace the poor to marginal areas for farming, and threaten social and ecological sustainability.63 Access to land is also critical for building socioeconomic security. Many governments and donor agencies fail to understand the important role that landlessness often plays in poverty and marginalisation. This is evident in the low priority given to land and agrarian reform. Land and the concomitant right to make productive and sustainable use of that land is a fundamental prerequisite for poverty eradication. Given the sustained focus on land rights in the UN system and from international and national civil society movements across the world, it is time to move to a formal recognition of the human right to land. The UN Human Rights Council is the body ideally placed to take that step. In addition to the work of a number of UN Special Rapporteurs, land as an entitlement is increasingly figuring in the Universal Periodic Review64 and in two new instruments:  the Declaration on the Rights of Peasants and Other People Working in Rural Areas and the (yet to be adopted) binding Treaty on Transnational Corporations and Human Rights. A clear recognition of the right to land would also make it possible for a cross-cutting issue like land to be the subject of joint analysis by concerned mandate holders, including on the rights of indigenous peoples, violence against women, food and housing. The UN Human Rights Council can adopt a resolution, based on the work in the UN system over the last fifteen years, recognising a distinct human right to land. This resolution can then be passed on to the UN General Assembly for endorsement. Given the assault land rights face across the world from unsustainable consumption and rampant land-grabbing, and the consequential human rights violations of individuals and communities depending on land-based resources, it can be convincingly argued, as this chapter has attempted to do, that the international human rights system needs to recognise land as a distinct human right. It is a major and glaring gap in the edifice of human rights painstakingly built since the adoption of the Universal Declaration of Human Rights.

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CHR, Report of the Special Rapporteur on Adequate Housing, Miloon Kothari, 1 March 2002, UN Doc. E/CN.4/ 2002/59, paras. 45, 54; CHR, Report of the Special Rapporteur on Adequate Housing, Miloon Kothari, 17 January 2005, UN DOC. E/CN.4/2005/48, paras. 25, 42. See the Reports of the Working Group on the Universal Periodic Review for, e.g., Albania, Australia, Botswana, Brazil, Cambodia, Colombia, Ecuador, Fiji, Israel, Kenya, Laos, Malaysia, Peru and Vietnam. For a complete list see www .upr-info.org/database/.

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7 The Human Right to Land ‘New Right’ or ‘Old Wine in a New Bottle’? Jérémie Gilbert

7.1 Introduction This commentary is written in support of the advocacy for a new human right to land put forward by Miloon Kothari. As highlighted by Kothari, access to land and natural resources is a fundamental issue for many people across the globe and should be included in international human rights law. With increased change to the planet’s climate, increasing investment in agribusiness, high demands for food and increasing populations, the demand for land is reaching breaking point. On top of these factors, the dominant market economy increasingly sees land as an important portfolio for investment, leading to what has been labelled ‘land grabbing’ across the globe.1 All these factors are analysed widely in the literature.2 What this commentary wishes to do is to ask whether the human right to land is ‘new’ or whether it is only the reinterpretation of other existing rights. To do so it will focus on three main questions. Why was the right to land not included as a stand-alone human rights norm (Section 7.2)? Should the human right to land become a stand-alone right or continue to be expressed via the realisation of other human rights such as housing and food (Section 7.3)? Should it be labelled as a ‘human right to land’ or as ‘land rights’ (Section 7.4)?

7.2 Why Did Human Rights Treaties Ignore Land Rights? History, Colonisation and the Dominance of Western Property Rights To evaluate whether or not the human right to land is new, the first step is to review why it was not included in human rights law in the first place. Arguably, the fact that a universal human right to land is not formally and specifically inscribed in a binding human rights treaty is not the result of a historical mistake but the consequence of the historical dominance of Western liberal ideals regarding property rights to land. The relationship between public authorities and their citizens over land rights has a long historical pedigree in Western politics and law.3 This 1

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See O. De Schutter, ‘The Green Rush:  The Global Race for Farmland and the Rights of Land Users’ (2011) 52 Harvard International Law Journal 503. See S. M. Borras Jr et al., ‘Towards a Better Understanding of Global Land Grabbing: An Editorial Introduction’ (2011) 38 The Journal of Peasant Studies 209; O. De Schutter, ‘How Not to Think of Land-Grabbing: Three Critiques of Large-Scale Investments in Farmland’ (2011) 38 The Journal of Peasant Studies 249; W. Anseeuw et al., Land Rights and the Rush for Land: Findings of the Global Commercial Pressures on Land Research Project (2012), available at www.landcoalition.org/sites/default/files/documents/resources/ILC%20GSR%20report_ENG.pdf. See A. Linklater, Owning the Earth: The Transforming History of Land Ownership (New York: Bloomsbury, 2013).

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historical pedigree is important for understanding why land rights are not formally proclaimed in the main international human rights treaties. It is not that rights to land have not been an important human rights issue; quite the opposite, as property rights to land have been a quintessential issue within the embryonic development of human rights law. A good illustration comes from the British Magna Carta of 1215, which is often viewed as one of the first formal human rights instruments.4 One of the essential elements of the Magna Carta was to recognise the right of all ‘free citizens’ to own and inherit property, including land.5 This right was not meant for all citizens, but as a protection for ‘landed’ citizens against loss of property, or rather to receive compensation for any such loss. A similar approach was also entrenched in the British 1689 Bill of Rights and in both the US Bill of Rights (1789) and French Declaration of Human Rights (1789). Property rights were inscribed as an essential right of citizens as a protection against arbitrary expropriation. At the time this mainly concerned the protection of ‘landed’ citizens, as the rights were intended to protect the property of mainly wealthy white males, not landless marginalised minorities.6 The idea that has been perpetuated since then was that the sovereign has ultimate control over the land under the notion of ‘eminent domain’, but does recognise some right to property of some wealthy individuals who possess some formal recognition of their right to land.7 These notions of ‘eminent domain’ of public authorities over land rights and property rights of wealthy landowners are central elements which have undoubtedly marked the relationship between land rights and human rights. The other significant impact of Western legal and political theories on property rights to land is the dominance of the so-called ‘agricultural argument’. The agricultural argument is rooted in Locke’s theory of labour in which only the land ‘used’ or ‘cultivated’ should be recognised as property.8 This idea of ‘developed’ or ‘properly valued and used’ lands is still dominant in the contemporary land policies of many states around the world.9 One of the main consequences of this is that land rights are mainly seen from the perspective of formal individual and exclusive ownership, a perspective which does not leave space for collective, common and shared usage of land. This approach also rejects the more collective, cultural and spiritual aspects of land rights of many rural communities across the globe, and ignores nomadic or transient use of land by nomadic or semi-nomadic communities.10 Due to the combination of the dominance of Western legal and political theories in the early years of human rights law and the history of colonisation (where control of land played a huge role), this approach to land rights as an issue of individual property had some significant consequences for the drafting of the contemporary international legal system. Another explanation for the lack of a formal proclamation of land rights within human rights law comes from the inherent complex and controversial aspects of land rights. In many countries, 4

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See M. Ishay, The History of Human Rights:  From Ancient Times to the Globalization Era (Berkeley:  University of California Press, 2008); C. N.  J. Roberts, The Contentious History of the International Bill of Human Rights (Cambridge: Cambridge University Press, 2014). See J. Ristik, ‘The Right to Property: From Magna Carta to the European Convention on Human Rights’ (2015) 11 South East European University Review 145. See J. W. Ely, The Guardian of Every Other Right: A Constitutional History of Property Rights (New York: Oxford University Press, 2007). See E. Frankel Paul, Property Rights and Eminent Domain (Abingdon and New York: Routledge, 2017). See T. Flanagan, ‘The Agricultural Argument and Original Appropriation: Indian Lands and Political Philosophy’ (1989) 22 Canadian Journal of Political Science 589. See C. Boone, ‘Land Tenure Regimes and State Structure in Rural Africa: Implications for Forms of Resistance to Large-Scale Land Acquisitions by Outsiders’ (2015) 33 Journal of Contemporary African Studies 171. See J. Gilbert, ‘Nomadic Territories: A Human Rights Approach to Nomadic Peoples’ Land Rights’ (2007) 7 Human Rights Law Review 681.

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access and rights over lands are often stratified and based on hierarchical and segregated systems where the poorest and less educated do not hold security of land tenure.11 There is an inherent issue of power and redistribution of wealth regarding land rights. Land reforms, land policies and land distribution usually play a catalytic role in economic growth, social development and poverty alleviation.12 This political importance of land rights certainly has a bearing on the fact that states were careful not to include land rights in the drafting of the international human rights treaties. Moreover, land rights are fundamentally about sovereignty as they concern the allocation of land and natural resources, issues that states are reluctant to see inscribed in the human rights agenda. Furthermore, land rights are often claimed as collective rights, something that several states (mainly Western) still perceive to be outside the scope of individual human rights.13 All these factors explain why land rights were left at the door of human rights law, with the only entry point being individual property rights of the ‘landed’. It is not that land issues were not discussed, but rather that due to this historical pedigree the issue of land rights was perceived to be part of the right to property.14 However, this integration of land rights under property rights has several negative consequences. First, it ignores the non-proprietary values of land, notably the social, cultural and spiritual importance of land rights. Second, it focuses on the rights of the individual – and not all individuals, but only those who have a formal title to the property of their land. This excludes the landless and peoples who have access to land based on customary and informal systems. It also excludes communities and peoples who do not exercise individual and exclusive land usage and property. Crucially, it means that land rights are invisible under human rights law and fall within the restricted issue of property rights. This limits land rights to Western views on property rights and makes the whole human rights system less universal than it should be. It does not mean that human rights law does not cater for other forms of land rights, but rather that, as was examined in detail by Kothari, land rights have to find a space under other human rights such as food and housing, but not as stand-alone rights.

7.3 Moving from the Shadow: Towards a Stand- Alone Right to Land? As analysed in great depth by Kothari, the right to an adequate standard of living embedded in the International Covenant on Economic, Social and Cultural Rights (ICESCR)15 has played a tremendous role in supporting the recognition of some fundamental rights such as housing, water and food. The Committee on Economic, Social and Cultural Rights (CESCR) has been extremely proactive on that front, notably highlighting the fact that land rights or access to

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See S. Moyo and P. Yeros (eds.), Reclaiming the Land: The Resurgence of Rural Movements in Africa, Asia and Latin America (London: Zed Books, 2013). See J. W. Bruce et al., Land Law Reform: Achieving Development Policy Objectives (Washington DC: The World Bank, 2006); International Land Coalition, Towards a Common Platform on Access to Land: The Catalyst to Reduce Rural Poverty and the Incentive for Sustainable Natural Resource Management (2003), available at www.hubrural .org/IMG/pdf/common_platform_on_access_to_land_eng.pdf. See M. Freeman, ‘Are There Collective Human Rights?’ (1995) 43 Political Studies 25. For an analysis, see J. Gilbert, Natural Resources and Human Rights: An Appraisal (Oxford: Oxford University Press, 2018), chapter 2. International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, in force 3 January 1976, 999 UNTS 3.

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land are part of the realisation of the ICESCR.16 The Committee on the Elimination of Racial Discrimination (CERD) has on many occasions highlighted that land rights are essential for tackling discrimination against specific groups.17 Likewise, the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW Committee) has also highlighted that land rights are an essential element for ensuring equality and protection of women’s rights.18 The Committee on the Rights of the Child and the Human Rights Committee (HRC) have also referred to land rights on many occasions.19 Hence there is a very substantial and solid jurisprudence likening food, housing and land rights.20 However, in this context land rights are ancillary to the realisation of other rights. As highlighted by Kothari, it is time to consider whether land rights should now become ‘new rights’ and have their own stand-alone treaty provision in human rights law. Indigenous peoples have managed to get this recognition with the adoption of the 2007 UN Declaration on the Rights of Indigenous Peoples, which includes several articles highlighting the essential importance of land rights on their own and not connected to the realisation of other human rights.21 This was the result of hard-fought years of advocacy and negotiations at the international level based on the extreme importance of land rights for indigenous peoples globally. It represents an important milestone, highlighting the fundamental connection between human rights law and land rights for indigenous peoples. In 2018 the UN General Assembly adopted the UN Declaration on the Rights of Peasants and Other Peoples Working in Rural Areas, which also integrated a fundamental human right to land.22 The adoption of this declaration supports the recognition of land rights as a human rights issue for other groups that are not indigenous peoples. As highlighted by Kothari, international human rights institutions have also highlighted the importance of land rights for other specific groups, notably landless peasants and rural women. There is a developing jurisprudence which connects land rights with discrimination against specific groups. However, this approach to land rights is peripheral as it comes under the larger banner of discrimination and equality. This is an important development since non-discrimination is one of the most fundamental principles of human rights law, but it nonetheless raises the question as to whether there should be a stand-alone human right to land, and not only one that is attached to discrimination in the achievement of other specific rights such as housing and food.

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For references, see L. Claridge et al., Moving towards a Right to Land: The Committee on Economic, Social and Cultural Rights’ Treatment of Land Rights as Human Rights (2015), available at http://roar.uel.ac.uk/5147/1/MRG_ Rep_LandRights_Oct15_2-2.pdf. For references, see P. Thornberry, The International Convention on the Elimination of All Forms of Racial Discrimination: A Commentary (Oxford: Oxford University Press, 2016); and D. Keane and A. Waughray (eds.), Fifty Years of the International Convention on the Elimination of All Forms of Racial Discrimination: A Living Instrument (Manchester: Manchester University Press, 2018). See CEDAW Committee, General Recommendation No. 34 on the rights of rural women, 7 March 2016, UN Doc. CEDAW/C/GC/34. For a general analysis and overview, see OHCHR, Land and Human Rights: Standards and Applications, 2015, UN Doc. HR/PUB/15/5/Add.1. See J. Gilbert, ‘Land Rights as Human Rights: The Case for a Specific Right to Land’ (2013) 10 SUR International Journal on Human Rights 115; O. De Schutter, ‘The Emerging Human Right to Land’ (2010) 12 International Community Law Review 303. For an analysis, see J. Gilbert, Indigenous Peoples’ Land Rights under International Law: From Victims to Actors, 2nd ed. (Leiden: Brill Nijhoff, 2016). United Nations General Assembly, Declaration on the Rights of Peasants and Other People Working in Rural Areas, UN Doc. A/ RES/73/165 (17 December 2018).

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Under the current approach, land rights only become a human rights issue in the shadow of the violation of another right; therefore, land rights are an ancillary issue to other human rights. In itself there is nothing wrong with this as it does highlight the fact that human rights are indivisible and interdependent. As noted by Kothari, ‘land is a critical aspect of the bundle of rights that protect the survival and livelihood of people and communities’.23 However, this dependency of land rights on the realisation of other human rights is problematic on several levels. First, it means that land rights subsist in the shadow of other human rights, making them quasi invisible. This gives the wrong impression that land rights are a secondary issue attached to the realisation of other rights. The recognition of land rights and security of tenure has been highlighted as a fundamental concern by many peoples and individuals across the planet. In fact, access to food, housing, water and cultural heritage are ancillary to having secured and recognised land rights, and not the other way round. A second problematic issue relates to the fact that this ancillary approach to land rights does not properly integrate the holistic relationships that individuals and communities might have with their lands and natural resources. It forces them to put forward only specific aspects of their relationship with their land, connected only to the realisation of their right to food, housing or culture. For many communities land rights are more than just the aggregate of property, food and housing concerns. From this perspective, having to claim land rights on the basis of a specific connection to either food production or housing does not do justice to this more holistic and fundamental relationship to land. As a consequence, this ancillary approach to land rights inherently remains deeply embedded in a very market and neo-liberal approach to what constitutes land rights, as land rights are still seen through the prism of the ‘value’ of land, as a form of housing or a provider of food. It fails to capture non-material aspects of land rights. Another problematic issue within this approach to land rights is its contribution to the fragmentation of human rights law. The current approach is largely based on recognising specific aspects of land rights for specific groups: for example, the more holistic approach to land rights for indigenous peoples, the food aspects for small-scale farmers and the discrimination angle for rural women. This ad hoc approach suggests that land rights might only be important for these specific groups. Recent studies and advocacy have shown that land rights are also important for other groups, including, for example, city dwellers and more urban communities.24 There is also evidence that identity markers are not static: one person could be, at the same time, a seasonal small-scale farmer, a descendant of an indigenous community and an urban dweller. In a way, the rigid attachment of land rights to specific identity markers goes against these flexible identities, which all entail different approaches to land rights. The argument here is about recognising the universality of land rights. Like other human rights, land rights are universal and have very different meanings for many different peoples depending on context. The immense acceleration of urbanisation across the globe certainly puts more pressure on understanding and unpacking this connection between land rights and urbanity.25 A  more universal and visible proclamation of land rights would be a good ingredient for supporting this transition. Land-based social relationships are also essential in some non-indigenous communities, including landless rural workers, smallholders, artisanal fishers, 23 24

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Kothari, in this volume, p. 85. See N. Blomley, Unsettling the City: Urban Land and the Politics of Property (New York: Routledge, 2004); G. Payne, ‘Urban Land Tenure Policy Options: Titles or Rights?’ (2001) 25 Habitat International 415. See G. R. Wekerle and M. Classens, ‘Food Production in the City: (Re)negotiating Land, Food and Property’ (2015) 20 Local Environment 1175; J. Zhu and H. A. Simarmata, ‘Formal Land Rights Versus Informal Land Rights: Governance for Sustainable Urbanization in the Jakarta Metropolitan Region, Indonesia’ (2015) 43 Land Use Policy 63.

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pastoralists and forest-dwelling people. In sum, land rights are a universal value for many communities, individuals and groups across the globe, something that is not yet reflected in the piecemeal and ancillary approach developed under international human rights law.

7.4 Terminologies: ‘Land Rights’ or ‘The Human Right to Land’? One of the issues that needs to be addressed to support a ‘new’ right to land concerns the terminology to be used. In his chapter Kothari uses terms such as ‘land rights’, ‘human rights to land’ or ‘the right to land’. The use of this terminology reflects the wider approach in the literature, advocacy and legal jurisprudence where these terms are often used interchangeably. This issue might sound somewhat semantic and theoretical; however, it does carry some significant practical and important nuances. One of these issues concerns the plurality of the rights that are attached to land. As noted earlier, the rights that are attached to land are indeed plural and include civil, political, economic and social elements. Land rights can take many forms, from ownership to usufruct (rights of use), and could consist of a bundle of overlapping rights that could include both individual and collective systems of ownership, management and control of resources. From this perspective, the term ‘land rights’ seems to be slightly more encompassing than the term ‘human right to land’. The fact that land rights are plural implies that there is more than one form of right to land, whereas the term ‘right to land’ would imply that there is only one form of right to be exercised over land. The question would then be to define what would be a human right to land in its singular form, probably taking the debate back to whether it should be about property rights or more about economic, social and cultural rights. In the future definition of what might constitute a new human right to land, it is essential to allow more flexibility regarding the exact content of the rights that could potentially encompass very different legal entitlements, such as full-fledged ownership, specific tenure rights or shared usage rights, for example. This plurality of rights attached to land is connected with the practice of many communities across the globe who exercise their right to land via ancestral customary norms. These customs vary in terms of their content and mechanisms for enforcement, including issues of property, rights of usage, cultural and social practices, access to sources of livelihood and shared usage of resources. This diversity needs to be integrated in a future stand-alone human right to land. Another important element to bear in mind in the use of the terminology is that land rights are inherently connected to the management of natural resources. At the national level, most land legislation tries to make a clear distinction between land property and rights over natural resources.26 However, for many communities this separation between land property and management of natural resources is restrictive and does not support their more holistic economic, social and cultural approach to land and natural resources.27 To be meaningful, a human rightsbased approach to land rights has to include some elements of natural resources management. Many communities who have claimed their fundamental right to land have proposed that this has to include the management and use of natural resources.28 The connection between land

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For an analysis, see Gilbert, Natural Resources and Human Rights, chapter 2; and J. Rees, Natural Resources: Allocation, Economics and Policy (Abingdon and New York: Routledge, 2018). See E. Schlager and E. Ostrom, ‘Property-Rights Regimes and Natural Resources: A Conceptual Analysis’ (1992) 68 Land Economics 249. See J. Pollini et al., ‘The Transfer of Natural Resource Management Rights to Local Communities’ in I. R. Scales (ed.), Conservation and Environmental Management in Madagascar (Abingdon and New York: Routledge, 2014).

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rights and natural resource management is essential for ensuring that the economic, social and cultural foundation of land rights is integrated. On this issue it is worth highlighting the approach adopted by the Food and Agriculture Organization (FAO) in its voluntary guidelines on land tenure.29 As put forward by the FAO: Land tenure is an institution, i.e., rules invented by societies to regulate behaviour. Rules of tenure define how property rights to land are to be allocated within societies. They define how access is granted to rights to use, control, and transfer land, as well as associated responsibilities and restraints. In simple terms, land tenure systems determine who can use what resources for how long, and under what conditions.30

This focus on land tenure offers practical guidance on how to apply a human rights approach to land. From this perspective, human rights law does not need to reinvent the wheel regarding terminologies and content of land rights, as there are already some significant precedents to be used and integrated. What seems to be certain is that the recognition of the plurality of land rights is an essential element of what might become a stand-alone and binding affirmation of a human right to land and natural resources.

7.5 Conclusion Compared to many ‘new rights’ that are examined in the present collection, the human right to land is not entirely new in the sense that there is already a very developed jurisprudence and doctrine supporting and affirming land rights. What really makes land rights new is the fact that so far they have mainly been developing in the shadow of other human rights (food, housing, property) or as part of the rights of specific groups (indigenous peoples, peasants, rural women). Hence, the question is whether there should be a new approach to support a more visible, standalone conception of land rights. As noted in this commentary, one of the reasons why land rights were not inscribed in the human rights treaties is historical, notably the dominance of the Western focus on individual property rights. With the development of a much more universal human rights system, there is certainly scope for the adoption of a human right to land. A more formal and direct proclamation of a human right to land and natural resources would not ensure a more universal approach in human rights law, but it would become a strong advocate in support of some local communities. In terms of urgency, the increased demand by landless movements across the world, the pressure created by ‘land grabbing’, and the increased environmental and sustainable pressure put on land and natural resources also call for a much more systematic and direct engagement of human rights law to support a rights-based approach to the management of land and natural resources.

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See FAO, Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (Rome: FAO, 2012). FAO, Land Tenure and Rural Development (Rome: FAO, 2002).

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8 The Right to Health under the ICESCR Existing Scope, New Challenges and How to Deal with It Eibe Riedel

8.1 The Universality Claim of the Right to Health (RtH) 8.1.1 The RtH: Freedom and Entitlements The International Covenant on Economic, Social and Cultural Rights (ICESCR) is phrased in very vague and general, sometimes almost obscure language, and lends itself to many different interpretations. However, the Committee on Economic, Social and Cultural Rights (CESCR), established by the Economic and Social Council (ECOSOC) to monitor state party reports on economic, social and cultural rights (esc rights),1 has seen as one of its main monitoring functions to interpret the ICESCR provisions. It sees the Covenant as a comprehensive tool, covering both legal and policy issues under the umbrella of the law, and hands down suggestions and recommendations in the so-called ‘concluding observations’ on state party reports, clarifying the precise meaning of Covenant provisions in concrete situations. From time to time, when sufficient ‘committee practice’2 has evolved, the CESCR will also formulate General Comments (GCs) that seek to clarify the meaning and content of the specific esc right under review. The mandate to issue GCs was given by ECOSOC in 1987,3 similar to other human rights treaty bodies. By 2018 nearly all substantive Covenant provisions had been assessed by the Committee. The findings have been included in Revised Guidelines4 for reporting on the esc rights situation in member states, to facilitate their reporting and to ensure that the standards of analysis follow the same pattern for each country.5 Basically, the RtH covers freedom dimensions and entitlements. The freedom aspects of Article 12 ICESCR cover freedom from discrimination, torture, inhuman and degrading treatment, and harmful traditional practices such as female genital mutilation. It also covers freedom of association, assembly and movement. In terms of entitlements, Article 12 further demands, inter alia, the provision of a comprehensive primary health care system, ensuring immunisation against major infectious diseases, seeing to it that the general population is provided with adequate

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P. Alston, ‘Out of the Abyss:  The Challenges Confronting the New U.N. Committee on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 332 at 348ff. E. Riedel, ‘New Bearings to the State Reporting Procedure:  Practical Ways to Operationalize ESC-Rights  – the Example of the Right to Health’, in S. von Schorlemer (ed.), Praxishandbuch UNO (Berlin: Springer, 2002), p. 346. E/RES/1987/5, para. 9. Compilation of Guidelines on the Form and Content of Reports to be Submitted by States Parties to the International Human Rights Treaties, UN Doc. HRI/GEN/2/Rev.6, 3 June 2009, pp. 3ff. and 26–42. Ibid.

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nutrition, housing, and safe and potable drinking water,6 together with sexual and reproductive health information and services, including family planning, on which the CESCR has issued a specific GC.7 In May 2000 the CESCR adopted GC 14 on the right to the highest attainable standard of health under Article 12 ICESCR.8 The Committee had worked on the GC as far back as 1993, following a Harvard conference and a day of general discussion in the CESCR. A number of open and disputed issues could not be resolved at that time, so further deliberations were postponed until 1999. Among other items of dispute, there was division of opinion on such questions as the violations approach to esc rights,9 and on indicators and benchmarks for health.10 Moreover, there was dispute as to the question of general approach: should the RtH be restricted to health care or should it embrace a comprehensive rights-based approach starting from individual rights?11 Needless to say, the hesitance of some Western states, notably the USA, on the indivisibility of all human rights and the equal value of civil, political, economic, social and cultural rights persisted. In fact, the USA, by not ratifying the ICESCR – which currently is ratified by 170 states12 – emphasised its view that esc rights relate to policy choices and should therefore not be recognised as human rights.13 From the legal point of view, the USA as a nonmember state of the ICESCR is perfectly entitled to take such a restrictive view, but many other countries with a common law background harbouring similar views cannot take that view as member states of the Covenant: by joining the ICESCR they promised to fulfil real obligations, not merely accept policy choices, as the CESCR has pointed out regularly since GC 3.14 The CESCR has therefore, since the very beginning, objected strongly to the US position, and most member states share that view. So a new beginning was made in 1999 when a couple of special workshops started a new round of discussion between the CESCR, non-governmental organisations (NGOs) and several specialised agencies, most notably within the World Health Organization (WHO). All this helped to start the drafting of a GC on Article 12 ICESCR. While the WHO had previously concentrated on policy issues of health and had produced only a few legal documents on health matters, such as the International Health Regulations (1969) and only one treaty, which banned tobacco as a health risk,15 this had gradually changed

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See generally Riedel, ‘New Bearings to the State Reporting Procedure’. General Comment No. 22: The Right to Sexual and Reproductive Health (Art. 12 ICESCR), 2 May 2016, UN Doc. E/C.12/GC/22. General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 ICESCR), 11 August 2000, UN Doc. E/C.12/2000/4. A. Chapman, ‘A Violations Approach for Monitoring the ICESCR’ (1996) 18 Human Rights Quarterly 23; see also the overview in B. C. A. Toebes, The Right to Health in International Law (Antwerp: Intersentia, 1999), p. 311. E. Riedel, ‘Monitoring the 1966 International Covenant on Economic, Social and Cultural Rights’, in G. P. Politakis (ed.), Protecting Labour Rights as Human Rights:  Present and future of International Supervision (Geneva:  ILO, 2007), pp. 8ff.; E. Riedel, ‘Measuring Human Rights Compliance: The IBSA Procedure as a Tool of Monitoring’, in A. Auer, A. Flückinger and M. Hottelier (eds.), Les droits de l’homme et la constitution: Études en l’honneur du Professeur Giorgio Malinverni (Zurich: Schulthess, 2007), pp. 256ff. On this see Toebes, The Right to Health in International Law, p. 311. Status as at 26 July 2019, https:/ohchr/org./treatybodies/icescr. E. Riedel, ‘International Law Shaping Constitutional Law’, in E. Riedel (ed.), Constitutionalism – Old Concepts, New Worlds (Berlin: Berliner Wissenschaftsverlag, 2005), pp. 108ff. General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2(1) ICESCR), 14 December 1990, UN Doc. E/1991/23, paras. 9 and 10. WHO Framework Convention on Tobacco Control, 2003, www.who.int/fctc/en; for a brief outline see C. Dresler et al., ‘Human Rights-Based Approach to Tobacco Control’, in M. Grodin et al. (eds.), Health and Human Rights in a Changing World (New York and London: Routledge, 2013), p. 472.

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by 1999/2000. The human rights cluster of the WHO began to explore the possibilities of closer cooperation with the human rights mechanisms and this, in fact, contributed greatly to the drafting of GC 14. But it must be borne in mind that international lawyers, particularly when they come from civil law traditions, tend to take a rigid position on rights issues: unless it appears in treaty form, or as established customary law rules, or as general principles of law, rights talk is not taken seriously. International lawyers will therefore point to the International Labor Organization (ILO), where nearly 200 treaties and a corresponding number of recommendations relating to economic and social rights of workers exist. Consequently, international lawyers will deplore the alleged inactivity of other UN specialised agencies like the WHO that have followed the policy approach instead of the treaty approach. Such a legalistic attitude is, however, quite flawed. The WHO in its over seventy years of existence has done a great deal of beneficial work in harmonising health laws, combating specific diseases and devising policies and strategies relating to health care that have resulted in almost total eradication, or at least significant containment, of such scourges as malaria or tuberculosis. However, since the demise of the Soviet Union and the near-collapse of the public health services in several states of the Community of Independent States, some of these diseases are coming back with a vengeance, and at frightening rates. In addition, the AIDS campaigns under the auspices of the WHO and the Joint UN Programme on HIV/AIDS (UNAIDS) have done a lot to raise awareness of the problems involved, even if the success rate of such efforts varies a great deal in the various regions of the world. Thus, a purely legal approach to health problems is only one way of finding answers, and certainly not the only one. The CESCR has consistently interpreted the individual provisions of the ICESCR as a comprehensive tool, covering both legal and policy issues under the umbrella of the law. As GC 14 states right at the beginning: ‘The realization of the right to health may be pursued through numerous, complementary approaches, such as the formulation of health policies, or the implementation of health programmes developed by the WHO, or the adoption of specific legal instruments.’16 In detailing the obligations flowing from Article 12 ICESCR, the CESCR has utilised the three types of state obligations, as developed by Henry Shue and Asbjörn Eide,17 and subsequently consistently applied by the CESCR and as found in the practice of most human rights treaty bodies, as well as by the literature on the topic.18 The typology used consists of obligations to respect, protect and fulfil. The obligation to respect the RtH under Article 12 ICESCR requires states to refrain from denying or limiting access for all persons, including prisoners, detainees, minorities, asylum seekers or even undocumented or illegal immigrants,19 to preventive, curative and palliative health services, to mention only a few. It clearly includes access to emergency services and temporary medical treatment for the period of their detention, or prior to extradition or expulsion, for example. It also requires states to abstain from discriminatory practices as a state policy, particularly relating to the status and needs of women’s health. In addition, it requires them to 16 17

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GC 14, para. 1, sentence 2. See H. Shue, Basic Rights, Subsistence, Affluence, and U.S. Foreign Policy, 2nd ed. (Princeton: Princeton University Press, 1996), pp. 52ff.; this was further developed by Report by the Special Rapporteur on the Right to Adequate Food as a Human Right, Asbjørn Eide, 7 July 1987, UN Doc. C/CN.4/Sub.2/1987/23. See in more detail E. Riedel, G. Giacca and C. Golay, ‘The Development of Economic, Social and Cultural Rights in International Law’, in E. Riedel, G. Giacca and C. Golay (eds.), Economic, Social and Cultural Rights in International Law: Contemporary Challenges (Oxford: Oxford University Press, 2014), pp. 18ff. See GC 14, para. 34, where a long list of examples is given. In the adoption process of the GC, there was a lot of discussion as to whether undocumented immigrants would be entitled only to primary health care and emergency treatments, but the subsequent Committee practice never exceeded that narrower scope.

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refrain from prohibiting or impeding traditional preventive care, healing practices and traditional medicines,20 from the marketing of unsafe medicines, or imposition of coercive medical treatment, unless for the treatment of mental illness or the control of communicable diseases, but then subject to specific, stringent and restrictive conditions respecting best practices and applicable international standards. Other ‘respect’ obligations concern the prohibition of limiting access to contraceptives or other reproductive health means,21 and the prohibition of misrepresenting health-related available information, including on sexual education, as happened in South Africa under the Mbeki presidency in relation to HIV/AIDS at the beginning of the twenty-first century.22 As regards the obligations to protect in relation to Article 12 ICESCR, this involves adoption of legislative or other measures ensuring equal access to health care and health-related services provided by third parties; the state in this function must ensure that privatisation of the health sector – as presently witnessed in many countries – does not constitute a threat to the availability and quality of health services. Marketing of medicines needs the protection of states parties, as does the provision of appropriate standards, education skills and ethical codes of conduct for medical personnel, to mention only a few ‘protect’ obligations.23 Article 12 also embraces obligations to fulfil. In paragraphs 36 and 37 of GC 14 a non-exhaustive list of such fulfilment duties is outlined. Thus, for instance, states should adopt a national health policy – either through legislative or other means – with a detailed plan of action for realising the right to health that aims to effectively improve the health care system. GC 14 goes on to say:  ‘States must also ensure provision of health care, including immunization programmes against major infectious diseases, and ensure equal access for all to the underlying determinants (preconditions or prerequisites) of health, such as nutritiously safe food and potable drinking water, basic sanitation and adequate housing and living conditions.’24 Apart from ensuring the adequate/appropriate training of doctors and other medical personnel, states parties have to provide a sufficient number of hospitals/clinics and other healthrelated facilities, subject to resources available. The CESCR in its monitoring practice has laid particular stress on this, especially as regards proper health care provision in distant, rural and poor urban areas. 8.1.2 Core Obligations While these obligations seem quite challenging and onerous for states parties, GC 14 has made it clear that despite the numerous legal obligations relating to the freedom aspects and the entitlement components of the RtH, only a relatively small but essential number of ‘core obligations’ can be found which all states, whether rich or poor, should be able to meet in all circumstances,

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On no account can this embrace ‘traditional practices’ like female circumcision, which all treaty bodies have regarded as clear violations of all relevant human rights treaties. On this see GC 22. For details see HIV/AIDS Denialism in South Africa, https://en.wikipedia.org/wiki/HIV/AIDS_denialism_in_South_ Africa; S. Boseley, ‘Mbeki AIDS denial caused 300 000 deaths’, The Guardian, 26 November 2008. On the nature of this obligation see also General Comment No. 15: The Right to Water (Arts. 11 and 12 ICESCR), 20 January 2003, UN Doc. E/C.12/2002/11, and the discussion in E. Riedel, ‘The Human Right to Water’, in K. Dicke et  al. (eds.), Weltinnenrecht:  Liber amicorum Jost Delbrück (Berlin:  Duncker & Humblot, 2005), pp. 587ff., 594ff. and 600. GC 14, para. 36, with further examples.

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because they are mostly not resource-dependent, or only to a very limited degree. The GC spelled out these core obligations as covering: (a) access to health facilities, goods and services, on a non-discriminatory basis, especially for vulnerable or marginalised groups; (b) access to the minimum essential food which is nutritionally adequate and safe, to ensure freedom from hunger; (c) access to basic shelter, housing and sanitation, and an adequate supply of safe and potable water; (d) to provide essential drugs, as from time to time defined under the WHO Action Programme on Essential Drugs; (e) to ensure equitable distribution of all health facilities, goods and services; (f) to adopt and implement a national public health strategy and plan of action.25 These minimum core obligations of the RtH have to be met by all member states of the ICESCR and have been the main focus of the state reporting procedure between the states parties and the CESCR. Other obligations flowing from Article 12 ICESCR usually involve costs that many developing states have great difficulties in meeting fully. GC 14 in paragraph 44 summarises these additional obligations as of ‘comparable importance’:  to ensure reproductive, maternal and child health care; to provide immunisation against the major infectious diseases; to take measures to prevent, treat and control epidemic and endemic diseases; to provide education and access to information concerning the main health problems; and to provide appropriate training for health personnel, including education on health and human rights. The core obligations flowing from Article 12 ICESCR affect the ‘survival kit’ or ‘existential minimum’ to which every individual is entitled.26 These core obligations in fact reflect the actual practice of many states at the level of domestic law, and most commentators agree that these core obligations may be regarded as part of customary international human rights law, or even as general principles of law.27 Some civil society commentators have been sceptical of this approach, alleging that important dimensions of the RtH might be left out, and that states parties would thus evade important duties flowing from the Covenant.28 However, if one looks at the reporting practice of states and at the kind of questions put to states by CESCR members since the adoption of GC 14 in 2000, it becomes clear that these core obligations form the centre of discussion during the dialogues with states parties. The range of core obligations of states parties covers ‘the satisfaction of, at the very least, minimum essential levels of each of the rights enunciated in the Covenant, including essential primary health care’, as the CESCR had already declared in its GC 3.29

25 26

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See GC 14, para. 43. See E. Riedel, ‘Core Obligations in Social Rights and Human Dignity’, in M. E. Geis, M. Winkler and C. Bickenbach (eds.), Von der Kultur der Verfassung: Festschrift F. Hufen (Munich: Beck, 2014), p. 79. See Riedel, Giacca and Golay, ‘The Development of Economic, Social and Cultural Rights in International Law’, pp. 20–23. M. Langford and J. A. King, ‘Committee on Economic. Social and Cultural Rights’, in M. Langford (ed.), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge: Cambridge University Press, 2008), pp. 492ff. GC 3, paras. 9 and 10; see also E. Riedel, ‘The Right to Life and the Right to Health, in Particular the Obligation to Reduce Child Mortality’, in C. Tomuschat, E. Lagrange and S. Oeter (eds.), The Right to Life (Leiden and Boston, MA: Nijhoff, 2010), pp. 357ff.

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8.1.3 Essential Medicines Out of the basket of core obligations, in what follows only the issues concerning essential medicines as mentioned in GC 14, paragraph 43(d) will be assessed by way of example. To discover what exactly is covered by that notion, GC 14 utilises the WHO Model List, which contains a list of some thirty essential medicines intended to cover minimum medicine needs for any basic health care system, and lists the most efficacious, safe and cost-effective medicines for priority conditions.30 The WHO has taken great care to ensure that priority conditions are selected on the basis of current and estimated future public health relevance, and the medicines listed have been carefully selected for their potential for safe and cost-effective treatment. The list covers, inter alia, generic medicines for anaesthetics, analgesics, anti-allergics and anaphylactic treatments, antidotes against poisonings, very detailed types of anti-infective medicines, anti-neoplastic, immuno-suppressives and medicines used in palliative care, and also medicines affecting the blood, blood plasma substitutes, cardio-vascular medicines, dermatological, diagnostic agents, disinfectants, diuretics, gastro-intestinal medicines, immunologicals, ophthalmological preparations, psychotherapeutic medicines, medicines acting on the respiratory tract, to highlight only some of the main essential medicines defined by the WHO. That drugs list summarises the range of absolute minimum standards required in any health care system, without which the RtH cannot be guaranteed at all. It is clear that this list is cost-intensive. The CESCR, in drafting its GC 14 on the RtH, was fully aware of the fact that ‘for millions of people throughout the world, the full enjoyment of the RtH still remains a distant goal’.31 It was also aware that ‘good health cannot be ensured by a state, nor can states provide protection against every possible cause of human ill health’; instead, the RtH must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realisation of the highest attainable standard of health.32 Each state that has ratified the ICESCR is thus under an obligation to provide these services within its available resources, as required by Article 2(1) ICESCR. 8.1.4 Availability, Accessibility, Acceptability and Quality Probably inspired by political scientists, economists and scholars of international relations, and also by special rapporteurs of the Human Rights Commission, later Human Rights Council,33 the GCs all employ categories that do not easily resemble legal formulations. And yet the CESCR felt that these essential elements of availability, accessibility, acceptability and quality represent a useful typology and help to relate the human rights approach of the UN treaty bodies to the policies and strategies developed in other inter-governmental UN fora.

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WHO Model List of Essential Medicines, 20th List, March 2017, www.who.int/medicines/publications/ essentialmedicines/en. GC 14, para. 5. GC 14, para. 9. B. Saul, D. Kinley and J. Mowbray, The International Covenant on Economic, Social and Cultural Rights. Commentary, Cases and Materials (Oxford: Oxford University Press, 2014), pp. 977ff., 996ff. and particularly 1018 on access to essential medicines; see also M. Sepulveda, ‘Colombia: The Constitutional Court’s Role in Addressing Social Justice’, in M. Langford (ed.), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge: Cambridge University Press, 2008), pp. 147ff.

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8.1.4.1 Availability Availability does not mean that even the least developed states have to provide a fully adequate public health service that meets the needs of the entire population in distant, rural and urban areas. That is merely a standard to be achieved eventually.34 It is clear that supplying the essential medicines necessary to maintain a minimum level of public health care represents a formidable challenge for the least developed countries of the world, and places many other developing countries in great difficulties, particularly when infrastructures are lacking and the state is highly indebted. Realising that many of those states would find it extremely hard to meet even the minimum requirements, GC 14 in paragraph 45 specifically emphasised that for those states Article 2(1) of the Covenant comes into play, stressing that it is incumbent on states parties, and other actors in a position to assist, to provide ‘international assistance and cooperation, especially economic and technical’, thus helping developing countries in dire need to meet their core obligations.35 8.1.4.2 Accessibility In addition to the availability criteria, accessibility criteria for the RtH have to be met. The CESCR in its GC 14 distinguished four overlapping subcategories, which have been generally accepted by states parties, civil society organisations and academia alike as useful functional categories. These categories are non-discrimination, physical accessibility, economic accessibility or affordability, and information accessibility. Non-discrimination is probably the most important and accepted esc rights principle, and GC 14 takes great pains to discuss that principle in all its ramifications under the heading of ‘special topics of broad application’.36 The Committee later elaborated this approach in its GC 20 on non-discrimination in economic, social and cultural rights (Art. 2(2) of the Covenant),37 reflecting and entrenching the general approach that had been developed in all GCs since GC 11 on plans of action for primary education38 and GC 12 on the right to food.39 Equal access for all is the core obligation resting on all states parties here. And to repeat: this obligation is considered to be largely resource-independent. Physical accessibility is an equally important facet of accessibility. It entails that, inter alia, potable drinking water and adequate sanitation facilities must be within safe physical reach, particularly in rural areas. Safe physical reach means, for example, that girls collecting water long distances away from home in Sub-Saharan Africa need protection against being harassed and sexually exploited by groups of young males.40 In urban areas, particularly poorer urban areas, health facilities, goods and services must be provided in such a way that, for example, persons with disabilities have adequate access to public buildings (‘barrier freedom’). The same applies to other major groups of socially marginalised or disadvantaged people, such as women

34

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In line with GC 3, paras. 9 and 10, and Statement by the Committee on the evaluation of the obligation to take steps to the ‘maximum available resources’ under an Optional Protocol to the Covenant, E/2008/22-E/C.12/2007/3, annex VIII. See also GC 3, para. 9. See GC 14, paras. 18–27. CESCR, General Comment No. 20:  Non-discrimination in Economic, Social and Cultural Rights (Art. 2(2) ICESCR), 2 July 2009, UN Doc. E/C.12/GC/20, annex VI. CESCR, General Comment No. 11: Plans of Action for Primary Education (Art. 14 ICESCR), 10 May 1999, UN Doc. E/C.12/1999/11. CESCR, General Comment No. 12: The Right to Adequate Food (Art. 11 ICESCR), 12 May 1999, UN Doc. E/1999/ 11. E. Riedel, ‘The Human Right to Health: Conceptual Foundations’, in A. Clapham and M. Robinson (eds.), Realizing the Right to Health (Zurich: Rüffer & Rub, 2009), p. 29.

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generally, children, older persons, minorities and indigenous people where these exist. The nondiscrimination requirement has proved to be one of the most important aspects of all esc rights protection measures. Next, the CESCR has addressed the thorny issue of economic accessibility or affordability. Payment for health care services has to be based on the principle of equity, ensuring that these services, whether provided publicly or privately, or through a mixed public–private system, are affordable for all, including socially marginalised and disadvantaged groups that are vulnerable. The CESCR states bluntly that ‘equity demands that poorer households should not be disproportionately burdened with health expenses, as compared to richer households’.41 Finally, information accessibility includes ‘the right to seek, receive and impart information and ideas concerning health issues’, subject to confidentiality of personal health data.42 8.1.4.3 Acceptability The additional criteria of acceptability and quality also raise important issues regarding protection of the RtH. Under these criteria, all health facilities and services must be respectful of medical ethics, and must at the same time be culturally appropriate, i.e. respectful of the cultural traditions of both individuals and also minorities, indigenous peoples and communities.43 8.1.4.4 Quality In addition, a quality dimension has to be taken into account. Health facilities, goods and services, apart from being culturally acceptable, must also be scientifically and medically appropriate and of good quality. Again, this involves cost-intensive measures for providing skilled medical personnel, distribution of approved and unexpired medicine and hospital equipment, plus provision of the determinants of health, such as housing, nutrition, safe water and adequate sanitation.

8.2 Key Concerns of the RtH in Recent Years 8.2.1 Sexual and Reproductive Rights The aspects outlined above regularly feature in the concluding observations of the CESCR, and member states have regularly reported on them in their periodic reports. But in recent years particular aspects have gained more prominence as knowledge about actual health needs has increased. Thus, following the endeavours of the CEDAW Committee and the Committee on the Rights of Persons with Disabilities, the CESCR devotes a considerable amount of time to RtH questions on sexual and reproductive rights, covering such issues as the right to marriage and prevention of child marriage, and the politically highly controversial question of the legality of abortion and self-determination rights of women. In its GC 2244 the CESCR highlighted these issues and, as with GC 14, emphasised the close inter-relatedness of these RtH dimensions with the principles of non-discrimination and equality under Articles 2(2) and 3 ICESCR. The Committee deduced these new dimensions of the RtH directly from the text of the Covenant, and thus not as completely new RtH parameters. 41 42 43

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GC 14, para. 12(b)iii. Ibid., para. 12(b)iv. For an overview, see CESCR, General Comment No. 21: The Right of Everyone to Take Part in Cultural Life (Art. 15(1)(a) ICESCR), 21 December 2009, UN Doc. E/C.12/GC/21. GC 22.

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8.2.2 Sexual Orientation and Gender Identity (SOGI) Similarly, the issues of sexual orientation and gender identity (SOGI) have gained considerable prominence in the work of all treaty bodies, and the CESCR devoted quite some time to the issues involved, particularly as a number of states still criminalise same-sex relations and do not allow marriage or same-sex partnerships, nor adoption rights for these persons. In its GC 20 on non-discrimination and esc rights45 the CESCR boldly assumes that such rights flow directly from the RtH provision under Article 12 ICESCR, read in conjunction with Articles 10, 2(2) and 3 ICESCR.46 Some Committee members had difficulties with these rights, as they are from countries where either for religious or cultural reasons a stricter view is preferred. Examples include Poland, with its strong allegiance to the Roman Catholic faith, and Arab states that have ratified and are members of the ICESCR regime but under Sharia law take a more restrictive view. Also included are countries such as the Russian Federation, Indonesia and China, but not Taiwan, and many African countries also regard these newer dimensions of the RtH as contrary to their cultural traditions. But the CESCR used several years of discussion among its members and arranged for workshops and days of general discussion to find solutions. In the end, the Committee adopted GC 20 by consensus, thus ensuring that the provisions on nondiscrimination and equality under the Covenant prevail over positions on cultural traditions and religious views. After GC 20 was finally adopted by the CESCR, some African and Asian states voiced their rejection, and Saudi Arabia  – not having ratified the ICESCR itself  – tried to get the UN General Assembly to pass a resolution calling on the CESCR to withdraw GC 20 or the relevant passages of it. That political attempt was, however, rejected by the General Assembly, only very few states having supported Saudi Arabia on the issue. A corresponding attempt at the Human Rights Council was similarly rejected by a large majority. All other treaty bodies have taken a similar view on non-discrimination matters and, by now, it can be assumed that the extensive interpretation of the RtH in GC 20 has become part of customary international human rights law. The opponents of this view can rely on the role of persistent objectors, excluding the binding effect for themselves. It remains to be seen whether in cases of dispute the subjective interpretation of such states or the objective interpretation of the Covenant provisions of the position, as outlined in GCs 20, 22 and 14, will ultimately prevail. 8.2.3 Mental Health Another frequently raised dimension of the RtH in recent years concerns mental health problems. Initially, the CESCR merely discussed the key dimensions outlined above in Section 8.1, but since the 1990s it has become evident that the situation in mental health institutions was deplorable in many countries. Treatment of mental illness usually only covered primary health care, and necessary secondary specialist treatment was usually denied. Moreover, few or no effective control mechanisms were provided for review of decisions on placing patients in mental health institutions. The alternatives of ambulatory services frequently were not, and are not, considered and weighed, if they were available at all. The CESCR now regularly asks questions on these issues and regards them as relating to binding RtH obligations for each member state. States

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GC 20. See in particular GC 20, paras. 32, 27 and 15.

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have now accepted that there is a great need for reform in these spheres, and in their reports to the CESCR they devote some space to developments achieved.47 In the most recent list of issues and concluding observations, the CESCR addresses in even greater detail the problems of mental health service provision, ranging from control mechanisms and revision procedures to actual detention conditions and health care parameters to be taken into account, particularly the availability, accessibility and quality of personnel serving in mental health clinics, to mention but some such questions.48 It could well be that the CESCR eventually might formulate a new GC on the issue. But it is quite clear that the Committee takes the view that these issues are already covered by the RtH under Article 12 ICESCR and by GC 14, and that this involves merely a question of interpreting existing binding norms, not creating new ones. 8.2.4 RtH in Prisons A further issue that is increasingly coming to the fore is the position of prisoners in relation to the RtH. Until fairly recently, prison issues were left to the Human Rights Committee under Articles 9 and 10 of the International Covenant on Civil and Political Rights, but since the Vienna World Conference on Human Rights in 1993 prison conditions and human rights issues, particularly in relation to health care and food provision, have been raised as a cross-cutting matter in all treaty bodies. Since then, the CESCR has scrupulously examined prison conditions in relation to the guarantees of the RtH and other esc rights, on which the Human Rights Committee understandably did not spend a lot of time. In the past, RtH issues usually only related to the key concerns applying to the entire population. Interned and imprisoned persons generally were believed to be subject to restrictions on their rights that had been imposed by the criminal sanctions regime. Since 2000, at least, this assessment has been revised and the CESCR, like other treaty bodies, now regularly addresses problems of prison conditions, ranging from overcrowding with resulting disease, infections and hygiene issues, via availability of HIV/AIDS specialist treatments, general medical controls and access to external specialist treatments, to matters such as special health care provision for persons with disabilities and even dietary health issues. The situation of inmates with mental health problems also receives increased attention. All these questions now form part of the general scope of the RtH under Article 12 ICESCR, and states parties have accepted that making progress in these areas forms part of their existing legal obligations under the RtH.

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This is complemented by country visits by individual Committee members where mental health institutions are visited and discussed with government ministers, experts, judges and psychiatrists. Just a few recent examples may illustrate these points: CESCR, List of issues in relation to the third periodic report of Slovakia, 19 April 2018, UN Doc. E/C.12/SVK/Q/3, para. 25: ‘l’usage de la force est interdit dans les établissements psychiatriques’; CESCR, List of issues in relation to the second periodic report of Kazakhstan, 23 April 2018, UN Doc. E/C.12/KAZ/Q/2, para. 23: ‘informations sur les measures prises pour protéger les droits des personnes placées en établissement fermé […] méchanismes de contrôle et de plainte, ainsi que sur réexamen regulier du placement dans ces établissements’; similarly, CESCR, List of issues in relation to the third periodic report of Estonia, 25 April 2018, UN Doc. E/C.12/EST/Q/3, 25 April 2018, para. 24; Concluding Observations: New Zealand, fourth periodic report, 1 May 2018, E/C.12/NZL/CO/4, paras. 46–47; CESCR, List of issues in relation to the fourth periodic report of Cameroon, 26 February 2019, E/C.12/CMR//Q/4, para. 26; and most emphatically CESCR, Concluding Observations: Bangladesh, initial report, 18 April 2008, E/C.12/BGD/CO/1, para. 67: ‘adopter une legislation cadre et une politique générale en matière de santé mentale, renforcer quantitativement et qualitativement les structures de psychiatrie et augmenter le nombre de professionnels dûment formés exercant dans ce domaine’.

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8.2.5 RtH in Armed Conflict Another major area of concern is the question of applying human rights norms in times of armed conflict. RtH issues form key concerns in that respect. The fundamental guarantees spelled out in the Universal Bill of Rights, consisting of the Universal Declaration of Human Rights of 1948 and the two Human Rights Covenants of 1966, worked on the assumption that these guarantees primarily apply in peacetime, because only in peacetime can state institutions at the national level provide the necessary infrastructure and control mechanisms, while during armed conflict regular state functions can only work to a limited degree. The two Covenants, later supplemented by other human rights treaties, all started from this peacetime premise. Only in recent years has the CESCR begun to address esc rights even during armed conflict, and particularly during post-conflict situations. Questions of homelessness under the right to housing, protection of women, particularly during the armed conflict and post-conflict situations, or equal access to health services under the RtH, guarantees of children’s schooling under the right to education49 even in conflict situations, and of children enlisted in armed forces and the need to provide medical and psychological post-trauma treatment to them, are now regularly taken up. Sexual violence against women, children and detainees during such situations are now addressed in some detail during the dialogues with the states parties concerned, and NGOs provide detailed information. In the concluding observations, strong recommendations follow, bearing in mind that individuals are often more dependent on their need for protection during armed conflict than during peacetime. The CESCR has noted with alarm in several instances the high levels of sexual violence and atrocities committed, including rapes carried out collectively and publicly (!) by all armed groups to generally intimidate the population, and often also committed by regular armed forces, in clear violation of international humanitarian law and human rights law.50 In the early years of CESCR practice, discussion of rights in armed conflict situations did not stand out prominently. In fact, armed conflict situations usually were referred to – if at all – in the opening paragraphs of the concluding observations under the heading ‘factors and difficulties impeding the full realisation of esc rights’. This had an apologetic ring to it, and illustrated that the Committee, while insisting on the state party fulfilling its Covenant obligations, accepted the fact of such conflicts as a reality, which for the time being rendered it impossible to meet in full the obligations under each Covenant right. Consequently, the CESCR would only urge the state party to undertake genuine steps to move, albeit slowly, towards meeting its obligations under the prevailing adverse conditions, in line with the wording of Article 2(1) ICESCR.51 Like other treaty bodies, the CESCR now regularly reviews state party performance even in times of armed conflict. A few examples should illustrate this point.

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B. O’Malley, Education under Attack: A Global Study on Targeted Political and Military Violence Against Education Staff, Students, Teachers, Union and Government Officials, Aid Workers and Institutions (Paris: UNESCO, 2010), in particular case discussions at pp. 65–93. E. Riedel, ‘Economic, Social and Cultural Rights in Armed Conflict’, in A. Clapham and P. Gaeta (eds.), Oxford Handbook of International Law in Armed Conflict (Oxford: Oxford University Press, 2014), p. 447. Art. 2(1) ICESCR: ‘Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.’

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In the case of Afghanistan, in the concluding observations of 2010 the issues of the combat against impunity, recruitment of child soldiers and health problems resulting from war-related traumatic disorders played an important role and led to strong recommendations.52 The changed approach to monitoring state compliance with ICESCR obligations became obvious when at the beginning of the twenty-first century, almost en passant, the CESCR took up issues such as the persistence of child labour in Colombia. Similarly, in the report on the Democratic Republic of the Congo (DRC), the CESCR made it quite clear that despite the war situation in several provinces, the state party remained responsible for guaranteeing, to the best of its ability, the core content of its Covenant obligations. The Committee reiterated its view that even where there was armed conflict in some parts of the country under review, if the state party attempted to excuse itself from the Covenant obligations as a result, this was flatly rejected.53 Thus in the dialogue with the DRC it was stressed that, for the western and southern provinces not affected by the armed conflict in the eastern provinces, the normal peacetime human rights have to be upheld. Yet even in the conflict-ridden eastern provinces elementary aspects of esc rights have to be guaranteed, particularly in relation to the health situation of women and children, and efforts to forbid requisition of schools for military purposes, thus preventing schooling altogether. To single out just one recommendation,54 the high level of sexual violence and atrocities, and the resulting health problems involved, was addressed, including ethnically motivated rapes committed collectively and publicly by all armed groups, including by the Congolese Army (FARDC) and the national Congolese Police (PNC), in clear violation of international human rights and humanitarian law.55 The CESCR was also alarmed that men accused of rape were often granted bail or were released, while the survivors of sexual violence (women and children, and often also boys and men) ended up being rejected by their families without health care being provided to them by the state, as required under Article 12 ICESCR.56 In the case of occupation, the CESCR, like all other treaty bodies, insists that the state party that controls the occupied territory remains responsible under human rights law, not just under international humanitarian law, as Israel maintains in relation to the Occupied Palestinian Territories.57 Thus, in relation to the RtH, access to medical services must be maintained both under humanitarian law and human rights law. A significant number of pregnant Palestinian women giving birth at Israeli checkpoints had been recorded due to overlong waiting periods.58 The CESCR rightly stressed that the RtH must be respected at all times, i.e. access to medical equipment, essential medicines and an adequate supply of safe drinking water must be available.59

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See CESCR, Concluding Observations:  Afghanistan, Considration of reports submitted by States Parties under Articles 16 and 17 of the Covenant, 7 June 2010, E/C.12/AFG//CO/2–4, paras. 15 (corruption and impunity), 30 (child soldiers) and 42 (health problems of war-related traumatic disorders). CESCR, Concluding Observations: Democratic Republic of the Congo, Considration of reports submitted by States Parties under Articles 16 and 17 of the Covenant, 16 December 2009, E/C.12/COD/CO/4, para. 6. Ibid., para. 25. Ibid., paras. 27 and 32, as well as 33. See O’Malley, Education under Attack, pp. 89–91 and 184–186 on the education system in Eastern Congo. See CESCR, Concluding Observations: Israel, Considration of reports submitted by States Parties under Articles 16 and 17 of the Covenant, 26 June 2003, E/C.12/1/Add.90, paras. 31, 35, 40–43. See e.g. UN Human Rights Council, The Issue of Palestinian Pregnant Women Giving Birth at Israeli Checkpoints. Report of the High Commissioner for Human Rights, 26 February 2009, A/HRC/10/35. See GC 14 on the RtH, paras. 43–44, and R. Kolb and S. Vité, Le droit de l’occupation militaire (Brussels: Bruylant, 2009), pp. 299, 440–445. See also GC 15 on the right to water, and generally Riedel, ‘The Human Right to Water’.

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The review of treaty body monitoring in relation to the RtH in times of armed conflict or natural catastrophes thus reveals that these human rights issues apply during both peacetime and armed conflict situations. No state is entitled to excuse itself for non-compliance with its Covenant obligations merely by hiding behind the wall that during wartime the state is allegedly unable to fulfil its human rights obligations. Under Article 2(1) ICESCR the state party has to prove that it has done everything within its available resources to guarantee as many of the Covenant obligations as possible. To do nothing would represent a clear violation of those obligations. Moreover, Article 4 ICESCR underlines this in relation to wilful limitations of rights, by stating clearly that ‘the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society’. 8.2.6 Recent Committee Practice One of the functions of GCs is to pick up hitherto unattended new developments under existing norms, and by extensive ‘evolutive’ interpretation focus on new elements of the RtH that have so far not been discussed in any detail. After the adoption of a GC, states parties are regularly requested to provide information about fulfilment of these aspects in their state reports, and the Committee will raise specific questions in the list of issues about these newer dimensions of the RtH. If the state party does not respond to these questions and does not show what progress has been made in the realisation of these aspects of the RtH, the CESCR – like other human rights treaty bodies – may request follow-up measures to be taken, and under a new procedural heading of ‘list of issues prior to reporting’ (LOIPR) may alert that state party that specific time in the dialogue with the Committee will be devoted to discussing the issues. Whether that LOIPR procedure will be a success is not clear yet, considering that some of the precious one-day or dayand-a-half of dialogue time with the state party needs to be devoted to this, leaving less time for other rights questions. On the whole, states parties comply with their reporting obligations and usually also report on the newer dimensions of rights, as elaborated in GCs, even if initially they were against such a reading of the Covenant provisions. Thus, so-called ‘Committee practice’ evolves which strengthens the broader interpretation of Covenant provisions.

8.3 The Need for New Health Rights? This chapter has so far tried to illustrate the extent of the normative content of the Social Covenant provisions in relation to the RtH. The more recent interpretations in the field of mental health, RtH in prisons and health issues during armed conflict, in particular, have emphasised the tendency of the CESCR, like other treaty bodies, to employ an ‘evolutive’, dynamic and not static textual interpretation approach. As the CESCR interpretation of the Covenant has developed only since the 1990s, it was clear that after an initial period of establishing and outlining the general scope and function of Covenant provisions, the normative content of the RtH could subsequently be analysed in greater detail, raising issues that hitherto had not been in focus during the monitoring of state party reports. While it was shown that in relation to the areas of mental health, RtH in prisons and RtH issues in times of armed conflict and natural catastrophes no new norms seem absolutely necessary, contention remains as regards trade and human rights. In recent times the CESCR has taken an ever broader approach when designing General Comments: while the main aim of the General Comments remains to explain in detail the state party’s fully binding obligations under

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the Covenant, thus providing guidance to states parties, the Committee, NGOs and others, the Committee has begun to address actors in the field of esc rights other than states parties, on which the text of the Covenant is silent, and offering suggestions and recommendations that transcend the binding Covenant provisions as areas of policy choices. Suggestions and recommendations are generally the means employed by treaty bodies in the concluding observations at the end of the state party monitoring process, and they fulfil very useful functions, highlighting particular problem areas of rights realisation in that particular state. That is also the place to gradually develop ‘Committee practice’, focusing on new dimensions of the law, and suggesting and recommending new normative positions not strictly covered by the text of the Covenant provisions. But it is clear to the Committee and to the state involved that these are recommendations de lege ferenda, not expressions of the existing binding norms. Until recently the General Comments restricted themselves by focusing predominantly on explaining and detailing the fully binding existing norms, largely refraining from opening up new rights dimensions. One of the main reasons for that was that states should be reminded squarely of their Covenant obligations, i.e. what duties states must fulfil, and not contain language that only outlines desirable aims that states should or might achieve. The danger caused by mixing must and should positions in General Comments is clear: states may then erroneously treat all interpretation positions taken by the Committee as mere recommendations which they can follow but do not necessarily have to follow. The main advantage of General Comments as authoritative interpretations of the existing state obligations is thereby watered down or blurred. The drafters of GC 2460 of CESCR on business and human rights were fully aware of this danger, and highlighted that any General Comment has to strike the right balance between being faithful to the letter and spirit of the Covenant and interpreting the Covenant in a way that reflected modern trends and developments. The Committee was not trying to produce an all-encompassing General Comment, but one that was readable and would serve as a useful tool not only for States parties, but also for companies, NGOs and other stakeholders.61

The difficulty with this new tendency of blending binding obligations and mere recommendations for developing the law is clear:  the object and function of a General Comment is not primarily to provide readability, but to bring clarity to the obligations that states parties must fulfil. Indeed, a closer look at GC 24 reveals that the CESCR probably overstepped its interpretation function in the sphere of business and human rights to a certain extent. To begin with, the CESCR reiterates the points already raised in 2012 in its Statement on obligations of states parties regarding the corporate sector and esc rights,62 stressing that the duty to protect esc rights in relation to the activities of business enterprises, and transnational corporations in particular, rests firmly on states. The Guiding Principles on Business and Human Rights, Implementing the UN ‘Protect, Respect and Remedy’ Framework of 2011, submitted by John Ruggie as Special Representative of the Secretary-General,63 presented in the UN Human Rights Council, merely argued for recommendations to non-state actors, not clear and binding legal obligations. The political science term ‘responsibilities’ thus remains well below the ‘obligations’ to respect, 60

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General Comment No. 24: State Obligations under the ICESCR in the Context of Business Activities, 10 August 2017, E/C.12/GC/24. See closing remarks of co-rapporteur D. Kedzia, Day of General Discussion on the draft GC on State obligations under the ICESCR in the context of business activities, E/C.12/2017/SR 4, 28 February 2017, para. 40. CESCR, Report on the forty-eighth and forty-ninth sessions, UN Doc. E/2012/22 – E/C.12/2011/3, annex VI, section A. A/HRC/17/31, 21 March 2011.

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protect and fulfil which traditional human rights treaty law has developed. According to Ruggie, states can only be held to account at the national sphere of influence. Beyond that sphere, states should merely encourage non-state actors to comply with human rights. Transnational corporations are recommended to develop existing internal corporation review mechanisms in light of human rights guarantees that are analogous to the impact assessments of environmental law. No concrete complaints mechanism was proposed, reliance being placed entirely on extrajudicial dispute settlement procedures.64 The Guiding Principles did, however, emphasise in their final recommendations that ‘industry, multi-shareholder and other collaborative initiatives that are based on respect for human rights-related standards should ensure that effective grievance mechanisms are available’, and that ‘effectiveness criteria for non-judicial grievance mechanisms’ ought to be developed.65 But that does not entail the proposition that establishment of such mechanisms already follows from the direct legal obligations under the Covenant. In its GC 24 of 2017 the CESCR first interprets the Covenant provisions stressing their fully binding character, picking up its points made in the 2011 Statement that highlighted the nondiscrimination obligations of states parties under Articles 2(2) and 3 ICESCR,66 such as discrimination in the work place, in relation to housing rights or in relation to the availability of credit facilities. The Committee rightly points out that certain groups of society, such as women, children, indigenous populations, ethnic and religious minorities, persons with disabilities, asylum seekers and undocumented migrants and migrant workers, to name but a few, are particularly affected by the negative effects of business activities.67 But the Committee goes on to recommend that states parties should address ‘the specific impacts of business activities on women and girls, including indigenous women and girls, and incorporate a gender perspective into all measures to regulate business activities […] including by consulting the Guidance on National Action Plans on Business and Human Rights’.68 While these recommendations pick up points that deserve further regulation at the national level, it is submitted that here they merely represent a list of potential areas for further regulation that presently are not covered by the binding Covenant provisions. Similarly, when the CESCR outlines the obligations to respect, states should identify any potential conflict between their obligations under the Covenant and under investment treaties, and should be prevented from entering into such treaties if conflicts with human rights obligations exist.69 The Committee goes on to recommend that before such treaties are concluded, human rights impact assessments ought to be undertaken, ‘including the contribution of such treaties to the realization of the right to development’.70 Again, it is submitted that here the CESCR leaves the path of Covenant interpretation, making sweeping statements de lege ferenda and embarking on policy issues that should be left to states and other inter-governmental arenas. Under the obligation to protect, states are then enjoined to see to it that conduct by businesses does not lead to the abuse of Covenant rights, ‘for instance through lowering the criteria for approving new medicines’, and several other examples are given.71 The whole subsection represents a full list of desirable policy choices but transcends the clear focus on what duties

64 65 66 67 68 69 70 71

See E. Riedel, ‘Reflections on the UN Human Rights Covenants at Fifty’ (2016) 54 Archiv des Völkerrechts 132 at 148ff. Principles 30 and 31 of the Guiding Principles, A/HRC/17/31, 21 March 2011. See GC 24, paras. 7–9. See ibid., para. 8. See ibid., para. 9, note 29. Ibid., paras. 12 and 13. Ibid., para. 13. Ibid., paras. 14–22, at 18.

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states must fulfil under the Covenant. In paragraphs 20 and 21 there is even an extensive discussion of corruption and of the increased role and impact of private actors in traditionally public sectors, ‘such as the health or education sector’.72 Picking up issues raised in GC 22 on sexual and reproductive health, the Committee then brings in the issue that where health practitioners are allowed to invoke conscientious objection to refuse to provide abortion services, states should refer the women and girls seeking abortion to another practitioner within reasonable reach who would be willing to provide such services.73 Many other examples of the mixing of binding Covenant obligations with recommendations of desirable policy options follow, which cannot be discussed in this context,74 but they represent new areas of human rights discussion that should, conceivably, be left to future regulation at the international law or national law levels. Considering the fact that significant controversies exist about the right policy choices to be made, the whole area of business and human rights policy choices should perhaps be left to the Human Rights Council, ECOSOC or the UN General Assembly, rather than to the CESCR under the Social Covenant.75 The example of the relationship of business and human rights shows that new areas of concern in the field of the RtH do exist and probably transcend the binding obligations under Article 12 ICESCR. As GC 24 illustrates, the complex and interrelated dimensions of the RtH when it comes to private actors such as business enterprises and their involvement in public health care issues do not produce simple answers. It is evident that states parties to the Covenant have a clear duty to ensure availability, accessibility and affordability, as well as acceptability and quality of health services and personnel, as part of the existing legal framework, and this applies, in particular, when formerly state-run health care facilities are privatised. The direct state obligation thus changes into the indirect one of protecting citizens from abuses of rights by private actors, and requires states to adopt legislation or other measures to ensure that privatisation of the health sector does not constitute a threat to the provision of adequate health care facilities, goods and services, and this includes the obligation to control the marketing of medical equipment and essential medicines by third parties.76 Medical practitioners and other health professionals employed in private health care facilities must also meet appropriate standards of education, skill and ethical conduct, just as is required in staterun institutions.77 The state reporting practice in the CESCR backs up this obligation to protect approach. Thus, no new norms in this RtH area seem to be required. As already outlined, by an evolutive interpretation of existing obligations of states parties to the Covenant, policy choices for states remain open. While states must show that they are addressing the problems involved and, for example, are taking anti-trust measures to control privatised business enterprises in the public health sector, under Article 2(1) ICESCR they have a broad leeway as to which concrete measures they may use to regulate and prioritise; but simply to do nothing would clearly represent a violation of their Covenant obligation. One reason why bringing in ever more new norms in the field of health may be counterproductive is the general experience that this will, in practice, tend to lower the degree of their 72 73 74

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Ibid., para. 21. See ibid., para. 21 and GC 22, paras. 14, 42, 43 and 60. See ibid., section C on extraterritorial obligations, paras. 25–37, section IV on remedies, paras. 38–57, section V on implementation, paras. 58–59. Moreover, work is ongoing in the Human Rights Council at the Open-ended Intergovernmental Working Group on transnational corporations and other business enterprises with respect to human rights, started in 2014, A/RES/HRC/ 26/9, to elaborate a treaty. This the CESCR had already spelled out in GC 14 on the RtH, in particular in paras. 34 et seq. GC 14, para. 35.

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acceptability to and implementation by states parties. Also, to produce new norms at the international law level is a costly exercise, takes many years of negotiation and often produces norms that contain formula compromises on which no real consensus exists. While the UN Covenants and many human rights treaties have been ratified by more than four-fifths of UN member states, the new norms might also only be accepted by fewer states, and might even lower the degree of acceptance of existing norms. The example of the UN Migrant Workers Convention78 is a case in point: that treaty containing many new obligations has been ratified almost entirely by sending states, while receiving states generally refuse to ratify it.

8.4 Conclusion This overview on the scope of the RtH under the ICESCR has illustrated that there seems to be no urgent need for new human rights norms in this area. The existing legal framework provides sufficient scope for evolutive interpretation of Article 12 ICESCR, enabling interpreters (the treaty body, states parties, NGOs and other stakeholders) to focus on areas that in the past have received less attention, such as sexual and reproductive rights, sexual orientation and gender identity, together with the RtH, mental health, RtH in prisons or the RtH in armed conflicts, to name but a few. The General Comments elaborated by the CESCR should continue to focus primarily on the fully binding components of the RtH, but there remains scope for adding human rights policy recommendations that are closely linked to the right. Concentrating too much on the primarily non-binding policy approach of the intergovernmental Human Rights Council should be avoided. Going down that track might diminish the binding effect of the RtH under existing human rights treaties and might encourage member states to take back the promises made when ratifying, opting instead for solutions that leave every issue to their own discretion. This would mean, in practice, that states could do as they please, ranging from taking no action at all in the direction of fulfilling their treaty obligations, simply picking out those obligations with which they have no problems, or regarding problems of rights realisation as areas of mere policy choices. This is what actually happens in the Human Rights Council, and should be avoided in the treaty body work by concentrating on the clear obligations to be met by states parties to the Covenant. The ‘responsibilities’ approach at the intergovernmental level of the Human Rights Council would be a step back for human rights realisation at the international law level. So caution is advocated when it comes to new dimensions of rights such as the RtH. It seems a better strategy to concentrate on the fully binding components of the RtH, and to deal with really new dimensions of any Covenant right in Committee Statements, where the CESCR can take a more policy-oriented view without detracting from the binding core human rights obligations flowing directly from the Covenant, being fully aware that there is ample room for the policy approaches of international intergovernmental institutions. Law and policy can be seen conjunctively, but any attempt to overemphasise or even prioritise the policy approaches should be resisted.

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9 Strong New Branches to the Trunk Realising the Right to Health Decentrally Stefan Martini

There is little sweat in singling out the usual suspects in the work of others. One can always play the polite, yet petty nit-picker and identify holes of reasoning or important issues which were missed. This strategy makes easy targets of most texts, not infrequently doing injustice to the respective author’s intentions. More daring options pose the risk of exposing flanks of one’s own. The subject of this volume seems to invite daring endeavours of the latter sort. On this route, one may purport that the object of critique, not going far enough, falls short of its own ambitions. Moreover, one could question underlying conceptions, methodologies, approaches and biases, shoehorning in one’s own. An even more demanding task appears to be that of productive critique, of supplementing instead of subtracting. Pick your battlegrounds. Commenting on a grounded, well-balanced and measured critique of the UN institution’s recent work, of which Eibe Riedel used to be an active member, precipitates those more substantive break-out strategies if one does not want to parallel too closely the contribution one is tasked to add to. With this comment, then, I aim for a balanced approach myself, taking up multiple reactive as well as complementary pieces out of the commentator’s strategy pool. On the positive side, I hope to extract an activist force out of Eibe Riedel’s text that has the potential to – legitimately – drive judicial innovations of the right to health (RtH) in contexts outside the UN: namely in the jurisprudence of the European Court of Human Rights (ECtHR). Before embarking on justifying an overarching concept of the right to health unifying a freckled health-related European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) rights record (Section 9.2), put forward by ECtHR Judge Pinto de Albuquerque in part in a fairly recent separate opinion,1 a preliminary step is in order. First, I  want to show that the underlying activist conception in Riedel’s text can be held against its own conclusions, checking the reactive comment box (Section 9.1). There exists a known universe of imaginable creations based on already enshrined human rights, like the one in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR): (a) sub-dimensions (e.g. specifying an obligation to protect2), (b) non-standalone sub-rights (e.g. a right to universal health care, determining core obligations), and (c) the most radical substance- or issue-specific derivative rights (e.g. a right to mental health,3 a right 1 2 3

ECtHR (Grand Chamber), Lopes de Sousa Fernandes v. Portugal (Appl. no. 56080/13), judgment, 19 December 2017. See E. Riedel, in this volume, p. 110. See C. Bublitz, in this volume, and S. Michalowski, in this volume.

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to certain means of reproduction4). Let me try a fourth option – a road less travelled than the three already mentioned – by forging a ‘substantive right to health (care)’ under the ECHR not yet explicitly enshrined therein, supporting Judge Pinto de Albuquerque’s proposal with some variations. The innovation here is a hardening exercise which strengthens the binding force of the right to health in overspecific and fragmented contexts in which, therefore, it is especially prone to be reasoned away. All these four novelty options combined make the legal human rights world a healthier place.

9.1 Setting the Scene 9.1.1 New Yet Illegitimate Right to Health Contents According to Riedel Riedel acknowledges the core function of the Committee on Economic, Social and Cultural Rights (CESCR), which is to clarify more or less vague provisions of the ICESCR by issuing General Comments (GCs) as well as recommendations directed towards states, with the Committee viewing the Covenant as encompassing ‘both legal and policy issues under the umbrella of the law’.5 However, at least in the context of the right to health, he condemns the CESCR’s recent ‘tendency of blending binding obligations and mere recommendations for developing the law’,6 handing out ‘sweeping statements de lege ferenda and embarking on policy issues that should be left to states’, thereby ‘probably [having] overstepped its interpretation function’.7 Including recommendations of desirable policy outcomes in general comments infects these with normative expectations creating the impression of ‘ever more new norms’8. Here, Riedel mirrors the anxiety towards ever more new human rights,9 a commonplace which equates growth in normative quantity with decline in normative quality: the normative overload would lead to a normative dilution of binding obligations and/or (a feeling of) overburdening on behalf of states parties. The legitimate separation of (international legal) powers should therefore, in Riedel’s eyes, be reflected in a clear division of labour: ‘(R)eally new dimensions’10 of the RtH can be dealt with in simple Committee statements or other intergovernmental fora; the only object of interpretative acts uttered by international monitoring bodies should be the spelling out of core contents of states parties’ obligations. As one (allegedly micro-managing) example, Riedel cites the obligation11 to ensure reproductive health care if the first practitioner sought invokes conscientious objection in refusing to provide certain services like abortion (General Comment No. 22, para. 4312). Another is the (clear and mere) recommendation to consider measures such as ‘restricting marketing and

4 5 6

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See M. J. Roseman, in this volume, and E. Brems, in this volume. See Riedel, in this volume, p. 107. A similar distinction is made by G. Ulfstein, ‘Law-Making by Human Rights Treaty Bodies’, in R. Liivoja and J. Petman (eds.), International Law-Making: Essays in Honour of Jan Klabbers (New York: Routledge, 2014), p. 257; K. Mechlem, ‘Treaty Bodies and the Interpretation of Human Rights’ (2009) 42 Vanderbilt Journal of Transnational Law 905 at 946. See also M. Hakimi, ‘Secondary Human Rights Law’ (2009) 34 Yale Journal of International Law 596 at 600. See Riedel, in this volume, pp. 120f. Ibid., p. 122. See e.g. A. Peters, Beyond Human Rights (Cambridge: Cambridge University Press, 2014), pp. 443ff., against the ‘trivialization of human rights’, complemented with the proposal to distinguish human and ordinary international rights. See Riedel, in this volume, p. 123. Riedel (in this volume, p. 122) uses the term ‘should’, implying a recommendation; the GC uses ‘must’. CESCR, General Comment No. 22: The Right to Sexual and Reproductive Health (Art. 12 ICESCR), 2 May 2016, UN Doc. E/C.12/GC/22.

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advertising of certain goods and services in order to protect public health’ (General Comment No. 24, para. 1913). 9.1.2 International Norm-Creation Powers and Processes Riedel’s stance appears to be underpinned by a mildly progressive variant of standard judicial theory. It sets limits on the interpretation of states’ international legal obligations, drawing a line between interpretations of ‘existing binding norms’14 and innovative statements de lege ferenda.15 Nonetheless, this mandate allows for constructive concretisation (‘norm-filling’)16 within certain limits, filling out the blanks left by the original drafters and not strictly constrained by the legal text alone.17 Judges, as well as quasi-judicial institutions, must then (under international law) refrain from creating new obligations which the respective states parties have not agreed to or acknowledged through established practice. The respect paid to the will of the people expressed in acts of parliament on the national plane is supposed to equal the respect towards consented norms created by the traditional subjects of international law. However, within the cloudy cadre of (1)  state consensus centrality, (2)  human rights teleology and (3) non-binding legality, the dichotomy of clear international legal obligations and – surrounding those – a zone of policy leeway seems less clear than Riedel seems to be hoping for. Human rights bear inherent dynamics which strive for progressive realisation (see Art. 2(1) ICESCR). Their fulfilment becomes ever more questionable when we discover lacunae of protection; hence, the need for an evolutionary approach is widely acknowledged for (certain border posts of)18 human rights and broad language treaty provision interpretation, as Riedel himself acknowledges in respect to GCs.19 The border line between growing human rights 13

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CESCR, General Comment No. 24: State Obligations under the ICESCR in the Context of Business Activities, 10 August 2017, UN Doc. E/C.12/GC/24. See Riedel, in this volume, p. 116. See also B. Schlütter, ‘Aspects of Human Rights Interpretation by the UN Treaty Bodies’, in H. Keller and G. Ulfstein (eds.), UN Human Rights Treaty Bodies  – Law and Legitimacy (Cambridge:  Cambridge University Press, 2012), p.  292, who is concerned about the legitimacy of de lege ferenda statements not reflecting party agreement, with respect to Art. 31(3)(b) of the Vienna Convention on the Law of Treaties. K. L. McCall-Smith, ‘Interpreting International Human Rights Standards’, in S. Lagoutte, T. Gammeltoft-Hansen and J. Cerone (eds.), Tracing the Roles of Soft Law in Human Rights (Oxford: Oxford University Press, 2016), pp. 28, 34, 46. With respect to the CESCR, see P. Alston, ‘Out of the Abyss: The Challenges Confronting the New U.N. Committee on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 332 at 351–355. See A. von Bogdandy and I. Venzke, ‘In Whose Name? An Investigation of International Courts’ Public Authority and Its Democratic Justification’ (2012) 13 European Journal of International Law 7–41. See also B. Ҫalı, ‘The Legitimacy of International Interpretive Authorities for Human Rights Treaties:  An Indirect-Instrumentalist Defence’, in A. Follesdal, J. K. Schaffer and G. Ulfstein (eds.), The Legitimacy of International Human Rights Regimes (Cambridge: Cambridge University Press, 2014), p. 158; S. Wheatley, ‘On the Legitimate Authority of International Human Rights Bodies’, in A. Follesdal, J. K. Schaffer and G. Ulfstein (eds.), The Legitimacy of International Human Rights Regimes (Cambridge: Cambridge University Press, 2014), pp. 109 and 111: ‘constitutionalist reading’; p. 113: ‘to articulate the minimum content of the political conception of the morally worthy political culture as understood by the States parties, and reflected in the text and other relevant materials, the precedents and judicial reasoning developed by the IHRB and the overlapping consensus on human rights, as presently constructed in domestic and global political debates’. See Report of the International Law Commission, Seventieth session (2018), Chapter IV, General Assembly, Official Records 73rd Session, Supplement No. 10 (A/73/10), pp. 64ff.; O. Dörr, Article 31, in O. Dörr and K. Schmalenbach (eds.), Vienna Convention on the Law of Treaties. A  Commentary, 2nd ed. (Berlin:  Springer, 2018), paras. 24, 26; M.  Fritzmaurice, ‘Interpretation of Human Rights Treaties’, in D. Shelton (ed.), The Oxford Handbook of International Human Rights Law (Oxford: Oxford University Press, 2013), pp. 766ff.; C. Djeffal, Static and Evolutive Treaty Interpretation (Cambridge: Cambridge University Press, 2016), p. 338, with specific reference to the ECtHR. See Riedel, in this volume, pp. 119, 122. See also Schlütter, ‘Aspects of Human Rights Interpretation by the UN Treaty Bodies’, p. 311.

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concretisation and the strangling of policy choice by judicial dicta will, by virtue of its vagueness and viewpoint-dependency nature, always be contested. With GCs, the issue becomes even more vexed as they are not legally binding per se,20 yet  – flowing from their generality  – necessarily follow a ‘quasi-legislative approach’.21 Despite their reduced formal legal quality, soft law utterances of human rights supervisory bodies enjoy, for the sake of international legal consistency, high persuasive authority in legal fora.22 Granted, this expectancy of institutionalised authority in turn calls for circumspect normconcretisation and reasoning in light of the will of states as – for now – the original and ultimate norm-setters;23 nevertheless, the practice of juridical concretisation (through interpretation and norm application) always involves a leap into hitherto unchartered and undeveloped territory. Subsequent (statal) acts of recognition stabilise those attempts of norm- (and institutional identity-)building.24 Not only, but especially on the international plane, jurisgenerative instances, binding or not, may only grow into established international law if and when the dominant norm personnel react not by retaliation but with engagement, whether this be critical or supportive.25 (Judicial) activism carries the risks of running into a wall of positivism from the starting block, which is why the subsequent battle over it needs to be, and commonly is, discounted in the initial act of (international) judging, creating and applying. Yet once evolutive practice is accepted in principle, the genie has left the bottle, the case management lies in the details, and instances of activism that have gone too far beyond the state consensus border slip the lasso when the ground is moving with the target. International norm-hardening26 takes place over time, involving many actors and entangling many documents, and is not hindered by singular contested norm applications and developments27 per se. Taking into account this frame of analysis, the legitimacy of the CESCR’s GC practice cannot be shaken by individual accusations of mandate violations when similar former daring acts of interpretation have not been met with matching severity. It might even be fairer to state that new rights levels (obligations to respect, protect, fulfil) and AAAQ (Availability, Accessibility, Acceptability, Quality) elements proposed by the Committee in GC 14 (paras. 33 et seq., 20

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U. Khaliq and R. Churchill, ‘The Protection of Economic and Social Rights: a Particular Challenge?’, in H. Keller and G. Ulfstein (eds.), UN Human Rights Treaty Bodies – Law and Legitimacy (Cambridge: Cambridge University Press, 2012), p. 205. Ibid., p. 206 (GCs 4 and 15); see also Ulfstein, ‘Law-Making by Human Rights Treaty Bodies’. See e.g. ICJ, Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of The Congo), Merits, 30 November 2010, judgment, ICJ Rep. 2010, p. 664, para. 66 – ‘great weight’ and ‘considerable body of case law’. Also McCall-Smith, ‘Interpreting International Human Rights Standards’, p. 31. Ulfstein, ‘Law-Making by Human Rights Treaty Bodies’, pp. 252, 257. Y. Shany, ‘Stuck in a Moment in Time: The International Justiciability of Economic, Social and Cultural Rights’, in D. Barak-Erez and A. M. Gross (eds.), Exploring Social Rights (Oxford: Hart, 2007), p. 104 points out that few states have protested against GCs. J. E. Alvarez, International Organizations as Law-Makers (Oxford:  Oxford University Press, 2006), p.  570:  ‘interplay between dispute settlers and other actors, including political actors’ reactions and adjudicators’ self-imposed limits on their discretion’. See also McCall-Smith, ‘Interpreting International Human Rights Standards’, p. 34: ‘legal opinion of a treaty body can be validated by the [domestic or international] court and lend legitimacy to existing and future treaty body opinions’; Mechlem, ‘Treaty Bodies and the Interpretation of Human Rights’, 919ff.; N. Reiners, ‘Die Interpretation von Menschenrechtsnormen durch die Vertragsauschüsse der Vereinten Nationen’ (2018) 23 MenschenRechtsMagazin 5 at 13; J. Tobin, ‘Seeking to Persuade:  A Constructive Approach to Human Rights Interpretation’ (2010) 23 Harvard Human Rights Journal 1 at 8, 11. An uncertain ‘process of becoming’:  see for his definition of soft law J. Cerone, ‘A Taxonomy of Soft Law’, in S. Lagoutte, T. Gammeltoft-Hansen and J. Cerone (eds.), Tracing the Roles of Soft Law in Human Rights (Oxford: Oxford University Press, 2016), p. 18. A. Boyle and C. Chinkin, The Making of International Law (Oxford: Oxford University Press, 2007), p. 155: ‘either … interpretative of the treaty provisions, or … going beyond the treaty and … developing the law’.

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13 et seq.)28 as binding legal obligations, in line with the minimum core obligations of the RtH (GC 3, para. 10;29 GC 14, paras. 43 et seq.) were significantly more bold, broad, innovative and possibly problematic30 than mere recommendations, which tend to narrow policy only marginally and slowly, if at all. Recommendations are explicitly part of the Committee’s mandate31 and have been part and parcel of GC practice. Conversely, the approach of GC 24 – one of Riedel’s core subjects of methodological attack – appears to follow a rather traditional approach which stresses state obligations and falls short of introducing direct obligations of private actors. The separation of legal norm concretisation in GCs and policy recommendations in mere statements appears less convincing when taking into account that those recommendations account for soft law interpretations of the supervised treaty law, notwithstanding the place of interpretation.32 When Committee language is clear, distinguishing between established and accepted treaty interpretation on the one hand and recommendations that are not (or not yet) binding on the other should not hinge on whether the latter appears in a GC or a mere statement. The legal potential in a Committee recommendation lies not in its publishing format, but in the specificity of the international legal process. International legal development profits from legal ambiguity at one specific point in time as far as the normative status of legal utterances is concerned. Riedel’s principled evolutionism allows for this flexibility and contingency in legal hardening over time – ‘reasonable norm expansion’33 – without cogently necessitating hard stances on where to draw the exact line for mandate violations. While the doctrinal direction of the CESCR carries legal legitimacy in principle, Riedel’s critique may nevertheless be associated with an uneasiness regarding how legal results are derived unilaterally, and with the conclusion that a more dialogical development of social rights would be opportune for the Committee.34

9.2 Changing the Scene – Realising the Right to Health Decentrally 9.2.1 Achievement and Novelty Since the right to (the highest attainable standard of) health entered the international law stage in the 1946 World Health Organization (WHO) constitution’s preamble more than seventy years ago,35 its normative development has witnessed a remarkable process of branching, expansion

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CESCR, General Comment No. 14:  The Right to the Highest Attainable Standard of Health (Art. 12 ICESCR), 11 August 2000, UN Doc. E/C.12/2000/4. General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1 ICESCR), 14 December 1990, UN Doc. E/1991/23. M. Bódig, ‘Soft Law, Doctrinal Development and the General Comments of the UN Committee on Economic, Social and Cultural Rights’, in S. Lagoutte, T. Gammeltoft-Hansen and J. Cerone (eds.), Tracing the Roles of Soft Law in Human Rights (Oxford: Oxford University Press, 2016), pp. 940ff. ECOSOC, 26 May 1987, E/RES/1987/5, para. 9: ‘compilation of recommendations’, not excluding statements of a policy nature. Khaliq and Churchill, ‘The Protection of Economic and Social Rights’, p. 208. S. P. Marks, ‘Normative Expansion of the Right to Health and the Proliferation of Human Rights’ (2016) 49 George Washington International Law Review 97 at 101. Bódig, ‘Soft law, doctrinal development and the General Comments of the UN Committee on Economic, Social and Cultural Rights’, pp. 69, 85ff. For developments within the WHO, see B. M. Meier, ‘The World Health Organization, the Evolution of Human Rights, and the Failure to Achieve Health for All’, in J. Harrington and M. Stuttaford (eds.), Global Health and Human Rights: Legal and Philosophical Perspectives (Abingdon: Routledge, 2010), p. 163.

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and concretisation in various fields and fora.36 Therefore, it might be thought too arduous a task to squeeze even a little more fresh juice out of the RtH twenty years into the twenty-first century.37 On the contrary: at least three features of the (universal) RtH – its fuzziness (or dissipation), connectivity and low legality  – will always render it susceptible to refinement and accretion (apart from the insuppressible continual renegotiation of rights of any sort). To begin with, the positive RtH cannot be grasped entirely, neither with a clear-cut formula38 nor through a definite set of sub-rights, nor a mere list of elements and dimensions. It defies stable definition.39 It is enshrined piecemeal-style in dry treaty language as necessary steps to be taken by states parties in the progressive realisation of the RtH are catalogued in Article 12(2) ICESCR. The ‘highest standard attainable’ phrasing in the first section of Article 12 ICESCR leaves a lot out of the picture and unanswered, and therefore, even more than with typical human rights vagueness, activates a strong semantic surplus shadowing any application and invocation of the right. Locking in a stable meaning for the RtH will thus ever be a lost cause. The complexity40 of the RtH is also visible in that it is structurally connected to other rights (beyond interdependency of human rights in general, as mentioned in the 1993 Vienna Declaration, I.541) and is especially visible in Article 25 UDHR.42 The ‘highest level of physical, mental and social well-being’ (Art. 10(1) of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (ACHR AP)) can show up in the backyards of many competing rights departments – to give a very handy example, the right not to be tortured.43 A minimum/sufficient level of food, housing, water, education and the like can be conceived as either underlying conditions of enjoying the RtH or as more or less independent elements of it. The RtH appears in other rights concretisation attempts as well as in RtH dimensions, and elements become part of other rights enshrinements (see, e.g., Art. 31(1) of the Charter of Fundamental Rights of the European Union (EU CFR)44). Some of the line-drawing is to a certain extent arbitrary: e.g., when is the right to sexual and reproductive freedom a stand-alone right and when a sub-guarantee of the RtH? When is it an explicit double-content right, e.g., the right to a healthy environment (see Art. 11(1) of the Additional Protocol to the American Convention on Human Rights (ACHR AP))?45 This strong 36

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See e.g. E. Riedel, ‘Right to Health’, MPEPIL, April 2011, paras. 6 et seq.; A. E. Yamin and A. Constantin, ‘A Long and Winding Road: The Evolution of Applying Human Rights Frameworks to Health’ (2017) 49 Georgetown Journal of International Law 191. According to P. Hunt, ‘Interpreting the International Right to Health in a Human Rights-Based Approach to Health’ (2016) 18 Health and Human Rights 109 at 114, there has been a considerable up-tick in scholarship on the right to health in the 2000s. Even Art. 10(1) of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, San Salvador, 17 November 1988, in force 16 November 1999, (1988) OAS Treaty Series No. 69, does not let the ‘right to health’ stand on its own – it complements it with ‘understood to mean’. For problems of definition, see Riedel, ‘Right to Health’, para. 29. J. Wolff, ‘The Content of the Human Right to Health’, in R. Cruft, S. M. Liao and M. Renzo (eds.), Philosophical Foundations of Human Rights (Oxford: Oxford University Press, 2015), p. 491. K. A. Weilert, ‘The Right to Health in International Law, Normative Foundations and Doctrinal Flaws’, in L. Vierck, P. A. Villarreal and A. K. Weilert (eds.), The Governance of Disease Outbreaks (Baden-Baden: Nomos, 2017), p. 146. Vienna Declaration and Programme of Action, Adopted by the World Conference on Human Rights in Vienna on 25 June 1993, 12 July 1993, UN Doc. A/CONF.157/23, I.5. See General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 ICESCR), 11 August 2000, UN Doc. E/C.12/2000/4, para. 3. See Riedel, ‘Right to Health’, paras. 17, 26. Charter of Fundamental Rights of the European Union, Nizza, 7 December 2000, in force 1 December 2009, OJ 2012 No. C 326/2. Hardened recently by Inter-American Court of Human Rights (IACtHR), The Environment and Human Rights (State obligations in relation to the environment in the context of the protection and guarantee of the rights to life and

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entanglement of the RtH with other rights or sub-rights opens up spaces of creativity (and to a lesser extent potential rights ‘phagia’). The right of access to medical care – the most institutional aspect of the RtH – is probably the nucleus which stands out as the most independent content of the interdependent RtH (see, stripped of other elements, Art. 35 sentence 1 EU CFR), even in light of the right to life. A different source of creativity is the low legality or soft law character of the rights concretisation acts accorded to the RtH (and other universally protected human rights) by, for example, supervisory bodies. The paradox ensues that the less formally binding rights interpretations and applications are, the more specific and extended those activities become in order to generate juridical value. It is the strongest offering available to formally weak institutions. Furthermore, from a centrifugal perspective the non-binding character of UN supervisory body statements lends itself to diffusion and proliferation of rights content onto (possibly) more binding and compliance-capable channels of legal distribution, namely national or regional rights protection actors (see below Section 9.2.2.3). 9.2.2 A Stand-Alone Umbrella Conception under the ECHR? 9.2.2.1 Health-Related Obligations Read into the ECHR Right While the RtH, taking up the thread of regional rights protection actors, is explicitly codified in the inter-American human rights treaty system (Art. 10 ACHR AP), no equivalent has been introduced via treaty-making channels in Europe.46 Facing this lack of codification, the ECtHR has opted for a pragmatic and at the same time multifarious approach, and has, using its interpretation powers, extracted health-related obligations of contracting parties out of several codified rights and freedoms enshrined in the ECHR. Accordingly, there does not currently exist a genuine RtH under the ECHR.47 The activism, audacity and creativity of the Court displayed otherwise and elsewhere stops here. It is the ECtHR’s principled stance, dating back (at least) to the Johnston judgment from 1986, that it ‘cannot, by means of an evolutive interpretation, derive … a right that was not included [in the Convention] at the outset’, negating in this specific case a right to divorce flowing from the right to marry according to Article 12 ECHR.48 By way of benevolent circumvention, the Court, instead of creating genuinely new rights, converts ‘implications of a social or economic nature’49 into positive obligations, reading them into already existing civil and political rights, albeit taking care to avoid rights blocks that are too independent and might break off the ECHR

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to personal integrity – interpretation and scope of Arts. 4(1) and 5(1) of the American Convention on Human Rights), Advisory Opinion OC-23/17 of 15 November 2017, Ser. A, No. 23, paras. 57, 64. See also Art. 18 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. Leaving aside Art. 11 of the European Social Charter (ESC), due to much weaker institutionalisation of the Charter as opposed to that of the ECHR (relatively weak compliance mechanism in collective complaints mechanism according to the Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, Strasbourg, 9 November 1995, ETS No. 168, or Art. D ESC 1996). See ECtHR, Demir and Demir v. Turkey (Appl. no. 58402/09), decision, 10 January 2017, para. 30: ‘no “right to health” as such’. See also e.g. S. Da Lomba, ‘The ECHR, Health Care, and Irregular Migrants’, in M. Freeman, S. Hawkes and B. Bennett (eds.), Law and Global Health (Oxford: Oxford University Press, 2014), p. 150. ECtHR, Johnston et al. v. Ireland (App. no. 9697/82), judgment, 18 December 1986, para. 53. See also joint dissenting opinion of Judges Ryssal et al. in ECtHR, Feldbrugge v. The Netherlands (Appl. no. 8562/79), judgment, 29 May 1986, para. 24. ECtHR, Airey v. Ireland (App. no. 6289/73), judgment, 9 October 1979, para. 26.

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shelf  – thus, it will not recognise rights contra legem.50 Rights balloons may be inflated, yet without producing actual new rights. Based on this approach, the Court finds positive RtH obligations of contracting parties by means of interpretation of enshrined rights, mostly in Articles 2, 3 and 8 ECHR.51 Council of Europe states are obliged, on the one hand, to take appropriate steps, including preventive measures to safeguard the ‘physical and psychological integrity of those within their jurisdiction as necessary’52 in, e.g., hospitals irrespective of their public or private nature –with respect not only to the right to life (Art. 2 ECHR)53 but also to the right to private life (Art. 8 ECHR).54 On the other hand, they shall provide for sufficient procedural, including judicial, mechanisms to determine causes of and those responsible for ill-treatment.55 The Court in particular controls health-related treatment of vulnerable persons, such as detainees, persons performing military service and children, under the ‘exclusive control’ of contracting parties.56 Article 3 ECHR is mostly invoked in order to prevent expulsion that is expected to expose the person affected to serious ill-treatment due to a considerably lower standard of health care in the country of destination.57 When the issue of allocation of state funds arises, the Court stresses the wide margin of appreciation of states in balancing the interests of individuals and those of the community.58 9.2.2.2 Judge Pinto de Albuquerque’s Pro Persona Approach to the ECHR RtH In a recent separate opinion, concurring and dissenting in part, ECtHR Judge Pinto de Albuquerque argues, fiercely and voluminously, for a substantive right to health care under the ECtHR.59 His result-driven, pragmatic intention is to align the ECtHR’s strict scrutiny standards applied to persons in ‘total institutions’ like prisons or army barracks with those for the many in comparable vulnerable situations in hospitals and other health service facilities,60 which he deems to be too thin. In the eyes of Judge Pinto de Albuquerque, all persons under the jurisdiction of the ECHR should benefit from substantial standards carved out from Article 2 (and possibly 3)  ECHR without being fed leftovers, meaning mere procedural rights dimensions guaranteeing less strict standards of ex post review of malpractice and ill-treatment. In order to reach his intended result, Judge Pinto de Albuquerque proposes a rather revolutionary and novel approach to ECHR interpretation. Quite contrary to findings of the ECtHR hitherto (see Section 9.2.2.1), he posits that there actually exists a substantive right to health care 50

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Concurring Opinion Judge Sicilianos, Magyar Helzinki Bizottság v.  Hungary (App. No. 18030/11), judgment, 8 November 2016, para. 12. See E. Brems, ‘Indirect Protection of Social Rights by the European Court of Human Rights’, in D. Barak-Erez and A. M. Gross (eds.), Exploring Social Rights (Oxford: Hart, 2007), p. 139ff. ECtHR, Demir and Demir v. Turkey, para. 30. ECtHR, Ṡentürk and Ṡentürk v. Turkey (Appl. no. 13423/09), judgment, 9 April 2013, paras. 79 et seq. E.g. ECtHR, Georgel and Georgeta Stoicescu v. Romania (Appl. no. 9718/03), judgment, 26 July 2011, paras. 48 et seq. See also ECtHR, Rõigas v. Estonia (Appl. no. 49045/13), judgment, 12 September 2017, inter alia with respect to consent to health measures; ECtHR, López Ostra v. Spain (App. No. 16798/90), judgment, 9 December 1994, regarding environmental situations affecting health. ECtHR, Calvelli and Ciglio v. Italy (Appl. no. 32967/96), judgment, 17 January 2002, para. 49. See e.g. ECtHR, Demir and Demir v. Turkey, para. 31; ECtHR, Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey (Appl. no. 19986/06), judgment, 10 April 2002, para. 35. See e.g. ECtHR, D. v. United Kingdom (Appl. no. 30240/96), judgment, 2 May 1997, para. 53; N. v. United Kingdom (Appl. no. 26565/05), judgment, 27 May 2008, para. 42. But see a denial of genetic testing case, ECtHR, R.R. v. Poland (App. no. 27617/04), judgment, 26 May 2011, paras. 153 et seq. See. e.g. ECtHR, Sentges v. The Netherlands (Appl. no. 27677/02), decision, 8 July 2003; ECtHR, Hristozov et al. v. Bulgaria (Appl. no. 47039/11 and 358/12), judgment, 13 November 2012, paras. 118 et seq. ECtHR, Lopes de Sousa Fernandes v. Portugal. Ibid., paras. 54, 74, 93.

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under the ECHR61 and fills this right with dimensions and even core obligations paralleling those of the CESCR in interpreting Article 12 ICESCR.62 In order to secure those core contents of the right to health care, he bars the possibility of using the more lenient limitation clauses of Article. 8 ECHR (privacy) or even derogations in times of emergency according to Article 15 ECHR.63 The strong line of defence against interference by contracting parties shall always be Article 2 (and possibly 3) ECHR. The legal basis of this audacious proposal is a pro-persona approach embedded in a purposive reading of (Art. 2 of) the Convention by Judge Pinto de Albuquerque supported by a human dignity ‘imperative’64 which allows for criticism of inconsistencies in the jurisprudence of the Court to date. Another backbone of the core doctrine of an ECHR RtH is the universality of those contents in comparative constitutional and customary international law.65 The gateway through which those external commands may inform ECHR interpretation is customary international law-friendly interpretation of the Convention.66 9.2.2.3 The Case for an Explicit Health Protection under the ECHR Without having space to develop the following ideas more thoroughly, I would argue that Judge Pinto de Albuquerque, despite his far-reaching ambitions, neither shoots far enough nor with adaptable gear. Judge Pinto de Albuquerque must be applauded for rejuvenating the nontransparent ‘implied right’67 approach of the ECtHR, calling a spade a spade. It is about time to acknowledge the interpretive creativity of the ECtHR68 and give those already existing read-in health-related entitlements clear shape and cover. The ECtHR as a rights ‘gatekeeper’69 has the judicial power to give the right to health ‘full recognition’ under the ECHR through a ‘groundbreaking judgment’.70 An explicit umbrella health guarantee71 communicates to rights holders in an honest and reliable way that they can count on health protection on the regional level. In addition, this umbrella approach nevertheless respects the sovereign law-making powers of the contracting parties by retaining the sources of this umbrella right in Articles 2, 3 and 8 ECHR, in which every respective case will still be rooted.72 The ECHR RtH would have a double identity as a derivative73 and

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Ibid., para. 71. Ibid., paras. 60 et seq. See also Section 9.1. Likewise calling for a minimum core approach, see I. Leijten, ‘Defining the Scope of Economic and Social Guarantees in the Case Law of the ECtHR’, in E. Brems and J. Gerards (eds.), Shaping Rights at the ECHR: The Role of the European Court of Human Rights in Determining the Scope of Human Rights (Cambridge: Cambridge University Press, 2014), p. 131. ECtHR, Lopes de Sousa Fernandes v. Portugal, para. 71. Ibid., paras. 59, 71. Ibid., para. 27. Ibid., paras. 71, 92. Judge Pinto de Albuquerque, ECtHR, Lopes de Sousa Fernandes v. Portugal, para. 29. See A. Mowbray, ‘The Creativity of the European Court of Human Rights’ (2005) 5 Human Rights Law Review 57. See C. Bob, ‘Introduction: Fighting for New Rights’, in C. Bob (ed.), The International Struggle for New Human Rights (Philadelphia: University of Philadelphia Press, 2009), p. 4. K. von der Decken and N. Koch, in this volume, p. 8. One prototypical groundbreaking judgment was delivered in IACtHR, Poblete Vilches et al. v. Chile, judgment, 8 March 2018, paras. 99, where the Inter-American sibling of the ECtHR for the first time introduced the direct justiciability of the right to health under the economic, social and cultural rights provision of Art. 26 ECHR – such a provision obviously has no parallel in the European system. For critique of an umbrella approach in general, see Weilert, ‘The Right to Health in International Law’, p. 170. Add the tenets of progressive international judicial philosophy elaborated in Section 9.1.2. Here close to a conception of derivative rights developed by J. Raz, ‘On the Nature of Rights’ (1984) 93 Mind 194 at 197.

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therefore juridically legitimate right on the one hand and an umbrella right as a means to improve human rights protection74 on the other. Yet this proposal would not be limited to a merely updated public relations strategy by the Strasbourg Court. A wider and overarching ambit of protection would prevent cases and situations falling through the cracks and holes between Articles 2, 3 and 8 ECHR. Moreover, cases do not need to be viewed through the myopic lenses of only one right – a flexible approach could assemble a case-by-case, or rather a case-element-by-case-element solution unlimited by doctrinal hurdles such as life-endangering activities in the realm of Article 2 ECHR75 or degrading practices under Article 3 ECHR. Judge Pinto de Albuquerque’s pro-persona and strict scrutiny approach is laudable. It could well lead to a levelling-up of protection in health-related cases before ECtHR benches. Yet it would miss the opportunity to integrate – along the lines of Article 12 ICESCR – more healthrelated issues into ECtHR jurisprudence, with the inclusion of matters under, e.g., Articles 3 and 8 ECHR. Such an overarching approach would offer a flexible judicial policy on limitation and proportionality, as the Court could choose limitation clauses according to the peculiarities of the case before it. A welcome side-effect would lie in reducing some justificatory burden, as the Court would not have to deal with every health-related Convention right76 but only with the most suitable one (unless the case requires a separation of case elements). Admittedly, this proposal could also open floodgates of balancing away individual rights – yet this development is not probable, since the factual situations of a case still need to be plausibly attached to a concrete ECHR right. The flexible avenue offered here opens up compromises between the high hurdles of Articles 2 and 3 and the comparably weaker limitation opportunities provided by Article 8(2) ECHR. Such a doctrinal invention is not unprecedented – in domestic constitutional law, the German Federal Constitutional Court created an antetype with the general right to protection of privacy and personality derived out of a combination of an even more general freedom of human conduct/ personal liberty right in Article 2(1) of the German Basic Law (BL) and human dignity enshrined in Article 1(1) BL.77 By allotting cases which are closer to either liberty or dignity protection, the Court has been able to navigate between the permissive limitation clause of Article 2(1) BL and the non-derogable dignity clause. By endorsing an overarching RtH, the Court would explicitly accept its constitutional role in European human rights protection and bring to the fore what has already been developed in detail behind the (separated) walls of individual rights guarantees. As Judge Pinto de Albuquerque’s exploration in his separate opinion has shown, an explicit RtH under the ECHR would, last but not least, spark human rights development by cross-fertilisation between universal and regional human rights systems78 irrespective of their implementation specificities.

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C. Wellman, The Proliferation of Rights (Boulder: Westview Press, 1999), p. 38. See e.g. ECtHR, Pentiacova et al. v. Moldova (Appl. no. 14462/03), decision, 4 January 2005. See e.g. ECtHR, Hristozov et al. v. Bulgaria. See W. Cremer, ‘The Basic Right to Free Development of the Personality – Protection of Personality Development v.  General Right of Freedom of Action’, in H. Pünder and C. Waldhoff (eds.), Debates in German Public Law (Oxford: Hart, 2014). Leijten, ‘Defining the Scope of Economic and Social Guarantees in the Case Law of the ECtHR’, p. 133, with respect to minimum core obligations. But for a realistic assessment, see Brems, ‘Indirect Protection of Social Rights by the European Court of Human Rights’, p. 167. Fertilisation is clearly visible in IACtHR, Advisory Opinion OC-23/17 and Poblete Vilches et al. v. Chile.

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10 The Human Right to a Clean Environment and Rights of Nature Between Advocacy and Reality Günther Handl*

10.1 The Human Right to a Clean Environment 10.1.1 Introduction To acknowledge the direct functional relationship between protection of the environment and the protection and promotion of human rights1 is to accept a truism. However, the relationship is a complex one and, ever since first formally recognised at the international level in the 1972 Stockholm Declaration,2 has been liable to being misunderstood. Evidence of this can be seen in the idea that the individual or collective interest in environmental protection is subsumable under a substantive ‘environmental human right’, and that a human right to a clean environment either exists as a matter of current general international law or ought to be recognised as such. While many commentators would agree that such a right does not exist today, support for formally recognising or establishing one cuts across a wide spectrum of international public opinion. Significantly, it appears to have been gaining renewed momentum recently.3 Advocates of such a right tend to believe that an environmental human rights approach would advance the cause of environmental protection and conservation,4 and indeed would promote the rule of law by strengthening states’ accountability for what one might call ‘environmental malfeasance’.5 Thus ascription of specific human rights characteristics to a given environmental claim and recourse to established human rights processes for the vindication of such a claim would, it is being suggested, make a difference in outcome. Yet the assumption that such a human rights-framed environmental claim would be readily amenable to being adjudicated is questionable. Nor is it self-evident that an environmental human right would provide a ‘complementary alternative to traditional international environmental law’.6 Indeed, even its staunchest * The author wishes to thank Brian Mersman for his research assistance. 1 See, generally, HRC, Analytical Study on the Relationship between Human Rights and the Environment, Report of the United Nations High Commissioner for Human Rights, 16 December 2011, UN Doc. A/HRC/19/34, para. 11. 2 Stockholm Declaration on the Human Environment, in Report of the United Nations Conference on the Human Environment, 16 June 1972, UN Doc. A/CONF.48/14, p. 2, and Corr.1 (1972). 3 See e.g. HRC, Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox, 24 January 2018, UN Doc. A/HRC/37/59. 4 Conversely, the right to a healthy environment is often considered a precondition for the enjoyment of other established human rights. 5 See A. Boyle, ‘Human Rights and the Environment:  Where Next?’ (2012) 23 European Journal of International Law 613. 6 See generally A. A. Cançado Trindade, ‘The Contribution of International Human Rights Law to Environmental Protection, with Special Reference to Global Environmental Change’, in E. Brown Weiss (ed.), Environmental

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proponents acknowledge existing tensions between environmental protection and human rights objectives.7 At the same time while an environmental human rights-based approach might actually do little to further environmental protection beyond what international environmental law or the invocation of established, non-environment-specific human rights already accomplish on their own, it might also entail significant costs. Clearly, recognition of an environmental human right is fraught with ‘difficult questions’ as a 2011 study by the United Nations High Commissioner on Human Rights concedes.8 One of the most intricate questions it raises is that of its operationalisation as an international legal concept9  – its justiciability in a court of law or before a specialised human rights decisionmaking body.10 For irrespective of how one might come to view such a right – as immediately enforceable, realisable progressively over time or as a ‘mere’ solidarity right – its invocation will require that its content be fleshed out, clarified and adapted to the specific circumstances of the case. This technically complex and legally and politically sensitive task of specifying ad hoc the import of a relatively indeterminate normative concept poses challenges for decision-makers at both national and international levels.11 A human right to a clean environment also raises broader fundamental issues, for example about the sources of international law. However, given limitations of space, this part of the chapter will focus narrowly on the two questions identified above: the present-day existence of such a right and its soundness from a public policy perspective. Moreover, it will not discuss the international legal recognition of special environmental protection needs of vulnerable groups. Nor will it, again for reasons of space, examine the potential horizontal effects of such a right, or the extent to which an environmental human right would entail extraterritorial obligations for the state concerned, issues that are, of course, of significant topical relevance as regards economic, social and cultural rights (ESCRs) generally. 10.1.2 Is There a Substantive Environmental Human Right in Contemporary International Law? At the outset it is important to acknowledge that the international human rights discourse continues to suffer from an unresolved ‘contradiction between conceptions of human rights as

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Change and International Law:  New Challenges and Dimensions (Tokyo:  United Nations University Press, 1992), p. 312. See e.g. M. R. Anderson, ‘Human Rights Approaches to Environmental Protection: An Overview’, in A. E. Boyle and M. R. Anderson (eds.), Human Rights Approaches to Environmental Protection (Oxford: Clarendon Press, 1996), p. 3. HRC, Analytical Study, para. 11. Normative effectiveness is, inter alia, a function of the context, in particular the forum, in which a claim is being asserted. Thus there is no denying that an environmental human rights claim may be given full or partial recognition in a variety of settings, most of them, however, political rather than legal. ‘Justiciability’ is to be understood here as being amenable to ‘formal third-party adjudication, with remedies for findings of noncompliance’:  M. J. Dennis and D. P. Stewart, ‘Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?’ (2004) 98 American Journal of International Law 462 at 463. For specific acknowledgement of this justiciability dilemma, see generally C. Tomuschat, Human Rights: Between Idealism and Realism (Oxford: Oxford University Press, 2003), pp. 51–52; and D. L. Shelton, ‘Developing Substantive Environmental Rights’ (2010) 1 Journal of Human Rights and the Environment 89 at 118–120. Thus, as a generic comment, it is disingenuous to suggest that ‘[i]t is not primarily the nature of economic, social and cultural rights, but the lack of competence or willingness of the adjudicating body to entertain, examine and pronounce on claims affecting these rights’. See Office of the United Nations High Commissioners for Human Rights, Economic, Social and Cultural Rights:  Handbook for National Human Rights Institutions (New  York and Geneva:  United Nations Publication, 2005), p. 26.

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either inherent in human beings by virtue of their humanity or as benevolently granted by the state’.12 This affects not just the perception of the burden of proof but also the very nature of the argument regarding the existence of such rights in general international law. For example, some adherents of a natural law theory of human rights might consider any ‘just claim’ as an existing human right.13 Many international lawyers, however, are likely to view the process of international recognition of human rights as evincing overlapping positive and natural law conceptions.14 Of course, the evolution of human rights is ‘gradual and largely incremental’.15 Repeated promotion in various fora, by a variety of actors, is therefore a hallmark of the process of securing international recognition of a claimed right.16 Nevertheless, evidence of actual supportive practice remains an indispensable part of any credible argument that a given claim has matured into a general international legal right.17 Certainly, evidence of this kind is not synonymous with proof of widespread and representative state practice which, coupled with opinio iuris, would be indicative of customary international law.18 Rather, it is evidence of a ‘general acceptance and recognition’.19 This indeed includes incidents of states’ claims and counterclaims (rare though they may be), human rights treaties themselves, the jurisprudence of international tribunals, findings by the Human Rights Council and other UN bodies, and the human rights dialogue between human rights treaty monitoring bodies, states parties and civil society groups.20 In this vein, evidence of ‘subsequent practice’ in the application of human rights treaties in, for example, the form of findings by treaty monitoring bodies will be relevant,

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P. Alston, ‘Making Space for New Human Rights: The Case of the Right to Development’ (1988) 1 Harvard Human Rights Yearbook 3 at 31. See e.g. J. O’Manique, ‘Human Rights and Development’ (1992) 14 Human Rights Quarterly 78 at 86–88; and R. S. Pathak, ‘The Human Rights System as a Conceptual Framework for Environmental Law’, in E. B. Weiss (ed.), Environmental Change and International Law (Tokyo: United Nations University Press, 1992), p. 214. See e.g. H. Lauterpacht, International Law and Human Rights (London: Stevens, 1968), p. 126; K. Vasak, ‘Human Rights as a Legal Reality’ in K. Vasak (ed.), The International Dimensions of Human Rights, 2 vols. (Westport: Greenwood Press, 1982), vol. I; and L. B. Sohn, ‘The New International Law: Protection of the Rights of Individuals Rather Than of States’ (1982–1983) 32 American University Law Review 1 at 19. J. Donnelly, Universal Human Rights in Theory and Practice, 3rd ed. (Ithaca and London: Cornell University Press, 2013), p. 194. Indeed, ‘in the development of human rights law principles have always preceded practice.’ B. Simma and P. Alston, ‘The Sources of Human Rights Law: Custom, Ius Cogens, and General Principles’ (1992) 12 Australian Yearbook of International Law 82 at 107. See O. Schachter, International Law in Theory and Practice (Dordrecht:  Nijhoff, 1991), p.  336; I. Brownlie, ‘The Rights of Peoples in Modern International Law’, in J. R. Crawford (ed.), The Rights of Peoples (Oxford: Clarendon Press, 1988); P. Alston, ‘Conjuring Up New Human Rights:  A Proposal for Quality Control’ (1984) 78 American Journal of International Law 607 at 615–616, 620; and, generally, Simma and Alston, ‘Sources of Human Rights Law’. See also UNGA, Resolution 41/120 on Setting international standards in the field of human rights, 4 December 1986, UN Doc. A/RES/41/120, para. 4(e), which lists among the criteria for the development of human rights instruments, ‘broad international support’. See O. Schachter, ‘International Law in Theory and Practice: General Course in Public International Law’ (1982) 178 Recueil des Cours 9 at 334. See also J. R. Crawford and I. Brownlie, Brownlie’s Principles of Public International Law, 8th ed. (Oxford: Oxford University Press, 2012), p. 638. Of course, the question whether a human rights claim reflects general normative expectations is not easily answered. Simma and Alston, while not dismissing custom, consider the ‘Universal Declaration of Human Rights and the body of soft law following up and building upon it as an authoritative interpretation of the human rights provisions of the U.N. Charter’ as well as general principles as the theoretical bases for general international human rights law. See Simma and Alston, ‘Sources of Human Rights Law’, p. 107. Other commentators, taking a more unorthodox approach to sources of international law, end up with a similar conceptualisation of ‘acceptance and recognition’. See e.g. J. d’Aspremont, ‘The Idea of “Rules” in the Sources of International Law’ (2014) 84 British Yearbook of International Law 103 at 115. See generally N. S. Rodley, ‘The Role and Impact of Treaty Bodies’, in D. Shelton (ed.), The Oxford Handbook of International Human Rights Law (Oxford: Oxford University Press, 2013), p. 621.

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provided the latter are generally accepted or unopposed by states parties.21 When measured by even such a broad yardstick, however, the assertion of the present-day existence of an environmental human right becomes implausible.22 There is no need to retrace here in detail why this is so.23 Suffice it to summarise key pieces of the evidence that confirms the absence of adequate, across-the-board support for the notion of a free-standing substantive right to a healthy, satisfactory or sustainable environment. At the global level, none of the conceivably relevant legal instruments, such as the Universal Declaration of Human Rights,24 the International Covenant on Economic, Social and Cultural Rights (ICESCR),25 the 1972 Stockholm Declaration on the Human Environment26 and the 1998 Rio Declaration on Environment and Development,27 readily lend support to the idea of a substantive human right to a clean environment.28 Over the years various UN human rights bodies had been exploring, if not actively promoting, the notion of a right to a healthy environment without, however, in the end formally endorsing such a right as an existing entitlement.29 Most recently, the Human Rights Council’s Special Rapporteur on the topic of human rights relating to the environment once again acknowledged the absence of such a substantive right at the global level.30

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See e.g. Committee on Human Rights Law and Practice, Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies, in International Law Association, Report of the Seventy-First Conference (2004), pp. 628–629. Luis Rodríguez-Rivera nonetheless affirms the existence of a ‘right to environment’. He arrives at this conclusion not by dismissing international ‘acceptance and recognition’ of the right (as discussed above) as an essential condition of its existence de lege lata, but by redefining what constitutes relevant evidence thereof. After glossing over the paucity of ‘traditional’ treaty or other international practice supportive of the entitlement, he considers relevant soft law instruments as ‘evidence of the will of the people’, and thus determinative of the right’s existence. See L. E. Rodríguez-Rivera, ‘Is the Human Right to Environment Recognized under International Law? It Depends on the Source’ (2001) 12 Colorado Journal of International Environmental Law and Policy 1 at 45. Of course, formally non-binding instruments may give rise to normative expectations. But such expectations without actual evidence of significant, if not general, compliance by states and other actors are incapable of bestowing upon the instruments concerned the definite evidentiary value he ascribes to them. See instead G. Handl, ‘Human Rights and Protection of the Environment: A Mildly “Revisionist” View’, in A. A. Cançado Trindade (ed.), Human Rights Sustainable Development and the Environment, 2nd ed. (San José, Costa Rica: Instituto Interamericano de Derechos Humanos, 1995), p. 117; A. Boyle, ‘The Role of International Human Rights Law in the Protection of the Environment’, in A. Boyle and M. Anderson (eds.), Human Rights Approaches to Environmental Protection (Oxford: Clarendon Press, 1996), pp. 43, 57 and 59; B. Boer and A. Boyle, ‘Background Paper: Human Rights and the Environment’, 13th Informal ASEM Seminar on Human Rights, 21–23 October 2013, Copenhagen, Denmark, p. 70, available at www.asef.org/images/docs/Background%20Paper%20-%20FINAL.pdf. UNGA, Resolution 217A (III), 10 December 1948, UN Doc. A/RES/3/217 A.  Even assuming that Art. 25 of the Declaration has come to reflect today’s customary international law, it merely refers to everybody’s ‘right to a standard of living adequate for the health and well-being of himself and his family’. International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, in force 3 January 1976, 999 UNTS 3. Art. 12(2)(b) of the ICESCR commits states parties to ‘improve all aspects of environmental and industrial hygiene’. But this reference is ‘so narrow that it scarcely addresses environmental protection at all’: Boyle, ‘The Role of International Human Rights Law’, pp. 43, 50. The International Covenant on Civil and Political Rights does not of course contain language that might be construed as endorsing the idea of an environmental human right. On this point, see e.g. L. B. Sohn, ‘The Stockholm Declaration on the Human Environment’ (1973) 14 Harvard International Law Journal 423 at 455. Rio Declaration on Environment and Development, in Report of the United Nations Conference on Environment and Development, 12 August 1992, UN Doc. A/CONF.151/26 (Vol. I), Annex I. See e.g. G. Handl, ‘Human Rights and Protection of the Environment’, in A. Eide, C. Krause and A. Rosas (eds.), Economic, Social and Cultural Rights: A Textbook, 2nd ed. (Dordrecht: Nijhoff, 2001), p. 303. For a general overview, see HRC, Analytical Study, paras. 41–55. See UNHRC, Report of the Special Rapporteur on Human Rights Obligations relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, John H Knox, 24 January 2018, UN Doc. A/HRC/37/59, para. 11.

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At a regional level, the Council of Europe-based human rights system does not recognise a substantive environmental human right.31 Several proposals to introduce such a right32 have failed. Neither the European Union Charter of Fundamental Rights33 nor, for that matter, the Aarhus Convention34 recognise such a right. Some regional human rights instruments such as the Arab Charter on Human Rights of 200435 and the ASEAN (Association of Southeast Asian Nations) Human Rights Declaration of 2012,36 do endorse the concept of a substantive environmental human right. However, the ASEAN Declaration’s normative credibility is undermined by the fact that it envisages the realisation of the rights guaranteed as being subject to national and regional considerations reflecting ‘different political, economic, legal, social, cultural, historical and religious backgrounds’.37 In addition, neither instrument is embedded in an effective monitoring/compliance control framework.38 In sum, the environmental right enshrined in both instruments de facto resembles a programmatic statement.39 One regional system that does feature a review mechanism is the African Charter on Human and Peoples’ Rights.40 Article 24 of the Charter provides that ‘[a]ll peoples have a right to a general satisfactory environment favorable to their development’.41 Although this formulation is not free of ambiguity,42 the African Commission on Human and Peoples’ Rights (AComHPR) 31

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See Council of Europe, Manual on Human Rights and the Environment, 2nd ed. (Strasbourg: Council of Europe Publishing, 2012), p. 7. However, in European Committee of Social Rights, Marangopoulos Foundation for Human Rights (MFHR) v.  Greece, Complaint No. 30/2005, Decision of the Merits, 6 December 2006, para. 195, the Committee interpreted the right to protection of health ‘as including the right to a healthy environment’. See Parliamentary Assembly of the Council of Europe, Recommendation 1130 (1990); Recommendation 1614 (2003) and Recommendation 1885 (2009). Art. 37 of the Charter of Fundamental Rights of the European Union, Nizza, 7 December 2000, in force 1 December 2009, OJ 2012 No. C 326/2, merely stipulates that ‘[a] high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development’. Both preamble and Art. 1 of the UN Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, 25 June 1998, in force 30 October 2001, 38 ILM 519, refer to every person’s right ‘to live in an environment adequate to his or her health and wellbeing’. However, their limited normative relevance is well captured in the declaration by the United Kingdom: ‘[t]he United Kingdom understands the references in article 1 and the seventh preambular paragraph of this Convention … to express an aspiration which motivated the negotiation of this Convention and which is shared fully by the United Kingdom. The legal rights which each Party undertakes to guarantee under article 1 are limited to the rights of access to information, public participation in decision-making and access to justice in environmental matters in accordance with the provisions of this Convention.’ See Aarhus Convention, Declarations and Reservations, available at https:// treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXVII-13&chapter=27&clang=_en#EndDec. Arab Charter on Human Rights, Tunis, 22 May 2004, in force 15 March 2008, 12 IHRR 893, Art. 38. ASEAN Human Rights Declaration, Phnom Penh, 18 November 2012, Arts. 28(f) and 36. See Arts. 7–8 of the ASEAN Declaration. The members of the ASEAN Intergovernmental Commission of Human Rights are government representatives, and hence considered incapable of objectively addressing human rights violations committed by the state. The Arab Charter has no effective enforcement mechanism. See M. A. Al-Midani, M. Cabanettes and S. M. Akram, ‘Arab Charter on Human Rights 2004’ (2006) 24 Boston University International Law Journal 147 at 149. See further R. Lowe, ‘Bassiouni: New Arab Court for Human Rights is fake “Potemkin tribunal” ’, International Bar Association, 1 October 2014, available at www.ibanet.org/Article/NewDetail.aspx?ArticleUid=c64f9646-15a5-4624-8c07-bae9d9ac42df. One additional factor accounting for this state of affairs is the principle of mutual non-interference by member states espoused by both organisations. African Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, in force 21 October 1986, 21 ILM 59. Art. 24 of the African Charter. As to concerns about the vagueness of the term of ‘peoples’, see e.g. R. N. Kiwanuka, ‘The Meaning of “People” in the African Charter of Human and Peoples’ Rights’ (1988) 82 American Journal of International Law 80 at 100– 101; A. E. Anthony, ‘Beyond the Paper Tiger: The Challenge of a Human Rights Court in Africa’ (1997) 32 Texas International Law Journal 511 at 515; and S. A. Dersso, ‘The Jurisprudence of the African Commission on Human and Peoples’ Rights with Respect to People’s Rights’ (2006) 6 African Human Rights Law Journal 358. In addition, there is potential conflict between its environmental protection and development objectives. See e.g. R. Churchill,

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concluded that the right ‘requires the state to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources’.43 The Commission confirmed that the right must be given immediate effect.44 Commission ‘findings’ or ‘decisions’ are not formally binding, but states parties ‘are treaty-bound to give effect to the Charter as interpreted by the treaty body in individual cases’.45 While deficiencies in institutional implementation and follow-up initially undercut the credibility of the African human rights system as a whole,46 the Commission, in 200647 and again in 2010,48 took corrective steps rendering the follow-up procedure both ‘vibrant and credible’.49 Nevertheless, the justiciability of the right to a healthy environment remains an issue. When applying the African Charter, the Commission is to ‘draw inspiration from’ or ‘take into consideration’ the Charter of the United Nations, the Charter of the Organization of African Unity (OAU Charter), global human rights instruments, and other Africa-specific human rights instruments and practices.50 This includes the African Protocol on Women’s Rights whose Article 18 promulgates a ‘right to a healthy and sustainable environment’.51 Some commentators therefore suggest that adjudication of even as broadly formulated a concept as the environmental right does not pose insurmountable obstacles.52 However, neither the Protocol53 nor the Commission’s 2012 Reporting Guidelines for Economic, Social and Cultural Rights54 appreciably eases the task of fleshing out the substantive contents of the right. In sum, even after the Commission’s Ogoniland decision, any future application of the Charter’s environmental entitlement will be legally and politically challenging.

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‘Environmental Rights in Existing Human Rights Treaties’ in A. Boyle and M. Anderson (eds.), Human Rights Approaches to Environmental Protection (Oxford: Clarendon Press, 1996), p. 106; and M. van der Linde and L. Louw, ‘Considering the Interpretation and Implementation of Article 24 of the African Charter on Human and Peoples’ Rights in Light of the SERAC Communication’ (2003) 3 African Human Rights Law Journal 167. AComHPR, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria, Decision 155/96, 27 October 2001 (‘Ogoniland’ decision), para. 52. Less remarkably, the Commission also pronounced on several procedural rights flowing from Art. 24. See Art. 1 of the African Charter. This affirmation occurred in a context in which the right was co-joined closely with the right to health. See the Ogoniland decision, paras. 51–54. Some commentators have cautioned that it would remain to be seen, therefore, whether a future claim based on the environmental right might succeed in isolation. See van der Linde and Louw, ‘Considering Article 24 ACHPR’, 187. F. Viljoen, International Human Rights Law in Africa, 2nd ed. (Oxford: Oxford University Press, 2012), p. 339. See van der Linde and Louw, ‘Considering Article 24 ACHPR’, 183. For early criticisms of the African Charter in general, see R. Gittleman, ‘The Banjul Charter on Human and Peoples’ Rights: A Legal Analysis’, in C. E. Welch and R. I. Meltzer (eds.), Human Rights and Development in Africa (New York: State University of New York Press, 1984), p. 152. See also M. W. Mutua, ‘The African Human Rights Court: A Two-Legged Stool?’ (1999) 21 Human Rights Quarterly 342 at 358. African Commission on Human and Peoples’ Rights, 97: Resolution on the Importance of the Implementation of the Recommendations of the African Commission on Human and Peoples’ Rights by States Parties, 29 November 2006. African Commission on Human and Peoples’ Rights, Rules of Procedure, Banjul, 12–26 May 2010. Viljoen, International Human Rights Law in Africa, p. 342. See Arts. 60–61 of the African Charter. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Maputo, 11 July 2003, in force 25 November 2005, 1 AHRLJ 40, Art. 18: Right to a Healthy and Sustainable Environment. To date thirty-six out of fifty-four African states have ratified the Protocol. See e.g. S. A. Yeshanew, The Justiciability of Economic, Social and Cultural Right in the African Regional Human Rights System: Theory, Practice and Prospect (Cambridge: Intersentia, 2013), pp. 239–240. Apart from the right to participate in environmental decision-making, the Protocol elaborates only on a few narrowly formulated substantive aspects of the right. African Commission on Human Rights and Peoples’ Rights, State Party reporting guidelines for Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights (Tunis Reporting Guidelines) (2012). They provide some specifications of other rights, but not the right to the environment.

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The other regional regime of interest here is the Inter-American one. Article 11 of the 1988 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights55 provides for everyone ‘to have the right to live in a healthy environment and to have access to basic public services’.56 However, the right is subject to the understanding that states implement it progressively, ‘to the extent allowed by their available resources, and taking into account their degree of development’.57 It had also been assumed that the right to a healthy environment was not amenable to being invoked in proceedings before the Inter-American Commission or the Inter-American Court of Human Rights.58 However, in its 2017 Advisory Opinion on The Environment and Human Rights,59 the Inter-American Court noted that the right was also part of the economic, social and cultural rights protected by Article 26 of the American Convention on Human Rights.60 It was, the Court reasoned, thus among the rights derived from economic, social, educational, scientific and cultural standards set forth in the Charter of the OAS, the American Declaration of the Rights and Duties of Man, and the American Convention on Human Rights interpreted in accordance with Article 29 of the Convention.61 The right to the environment, the Court therefore found, was judicially recognisable,62 a conclusion not shared by all judges, however.63 The Court then proceeded to elaborate on the contents of the right64 by quoting from the report of an OAS working group on the Additional Protocol.65 However, the five specific obligations of states identified by the Court as flowing from the right to a healthy environment are themselves essentially indeterminate,66 thus do not appreciably mitigate the justiciability challenge. The Advisory Opinion thus raises, first, a question regarding the appropriateness of the Court’s expansive reinterpretation of states parties’ accountability for ESCRs in disregard of the ordinary meaning of Article 26 of the Additional Protocol. Second, the operationalisation of the environmental right now 55

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Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, San Salvador, 17 November 1988, in force 16 November 1999, 28 ILM 161. The Protocol has sixteen parties whereas the other eighteen member states of the Organziation of American States (OAS), including the United States, Canada and Chile, are not parties to the instrument. Art. 1 of the Additional Protocol. Art. 19(6) of the Additional Protocol renders only trade union rights and the right to education ‘justiciable’. IACtHR, The Environment and Human Rights (State obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity – interpretation and scope of Articles 4(1) and 5(1) of the American Convention on Human Rights), Advisory Opinion OC-23/17 of 15 November 2017, Ser. A, No. 23. ‘The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively … the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the OAS as amended by the Protocol of Buenos Aires.’ IACtHR, Advisory Opinion OC-23/17, para. 57. See further J. L. Cavallaro and E. J. Schaffer, ‘Less as More: Rethinking Supranational Litigation of Economic and Social Rights in the Americas’ (2004) 56 Hastings Law Journal 217 at 227. The Court, having affirmed the interdependence and indivisibility of civil and political rights on the one hand and economic, social and cultural rights on the other, noted the absence of any hierarchy among the rights and emphasised their equal justiciability: IACtHR, Advisory Opinion OC-23/17, para. 57. Judges Eduardo Vio Grossi and Humberto Antonio Sierra Porto rejected the majority’s conclusion on this point. IACtHR, Advisory Opinion OC-23/17, para. 60. See OEA, Grupo de Trabajo del Protocolo de San Salvador, Indicatores de Progreso: Segundo Agrupiamento de Derechos, 5 November 2013, Doc. OEA/Ser.L/XXV.2.1, GT/PSS/doc.9/13. Namely, to guarantee, to everyone without discrimination, a healthy environment and basic public services; and to promote environmental protection, preservation and improvement: IACtHR, Advisory Opinion OC-23/17, para. 60. The OAS Working Group on Progress Indicators similarly unhelpfully suggests that the exercise of the right to a healthy environment ‘must be governed by the criteria of availability, accessibility, sustainability, acceptability, and adaptability’, while offering only a list of generic criteria as ‘key indicators of the right’. See OAS, Working Group of the Protocol of San Salvador, Progress Indicators for Measuring Rights under the Protocol of San Salvador, 2nd ed. 2015, Doc. OEA/Ser.D/XXVI.11, 97-99 and 101–108.

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thrusts the Inter-American Commission and Court into the sensitive position of final arbiter in any disputes between states parties and individuals over policies and practices bearing on the environment and natural resource management that might implicate the right. In this regard, the Advisory Opinion clearly signals a potentially momentous development. While the issues it raises are not quite of the same sensitivity as, for example, those of the Court’s recent samesex marriage ruling,67 the shift of power from states parties to the treaty body that the Advisory Opinion implies may well add to a growing risk of a state backlash against both the Court and the Commission.68 It thus remains to be seen whether or to what extent states parties will accept it.69 Unsurprisingly, limited and potentially controversial as this regional practice is, to date it has not been seized upon by proponents as conclusive evidence of a presently existing general international human right to a clean environment.70 Neither can – for good reasons, one might note71 – the domestic practice of states72 of recognising such an entitlement in national constitutions prove persuasive enough for a general-principle-of-law-type assertion regarding the existence of an environmental human right.73 In the end, as the United States pointed out before the Inter-American Commission on Human Rights, ‘there is no substantive right of individuals under international human rights law to a safe or healthy environment … as a matter of customary international law … [Moreover,] while some countries may choose to create a right to a healthy environment in their domestic law, this does not create customary international law on the subject.’74 Ben Boer and Alan Boyle echo this sentiment: ‘Human rights law does not at present guarantee a healthy, satisfactory or sustainable environment independently of any adverse impact on other human rights.’ However, ‘development of such a right, and the form it might take, merits [sic] further consideration’.75 This is precisely what John Knox, the Human Rights Council’s Special Rapporteur, has set out to do. Indeed, he now ‘recommends that the Human Rights Council consider supporting the recognition of the right in a global instrument’.76

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See IACtHR, Gender Identity, Equality and Non-Discrimination of Same Sex Couples State Obligations in Relation to Change of Name, Gender Identity, and Rights Deriving from a Relationship between Same-Sex Couples, Advisory Opinion No. 24/17 of 24 November 2017, Ser. A, No. 24. See e.g. ‘The Mouse that Roared’, The Economist, 3 February 2018, p. 29; and generally, D. Cassel, ‘Regional Human Rights Regimes and State Pushback: The Case of the Inter-American Human Rights System (2011–2013)’ (2013) 33 Human Rights Law Journal 1. Thus far the Advisory Opinion does not seem to have triggered any official comments by states. Some, however, have suggested that the European Court ought to follow the lead of its Inter-American counterpart. R. Pavoni, ‘Environmental Jurisprudence of the European and Inter-American Courts of Human Rights: Comparative Insights’, in B. Boer (ed.), Environmental Law Dimensions of Human Rights (Oxford: Oxford University Press, 2015), p. 106. O. Schachter pointedly warned against taking this practice at face value. See Schachter, International Law in Theory and Practice. Moreover, key countries, such as the United States, do not recognise such a right. Contra, see M. O’Boyle and M. Lafferty, ‘General Principles and Constitutions as Sources of Human Rights Law’, in D. Shelton (ed.), The Oxford Handbook of International Human Rights Law (Oxford: Oxford University Press, 2013), p. 194. Admittedly, the number of countries doing so is large and growing. See e.g. HRC, Analytical Study on the Relationship between Human Rights and the Environment, para. 30. The Human Rights Commission’s Analytical Study has instead suggested that this practice ‘may eventually set the stage for renewed debate on the status of customary law on the right to a healthy environment’, para. 31. IAComHR, Mossville Environmental Action Now v. United States, 17 March 2010, Report No. 43/10. Boer and Boyle, ‘Background Paper: Human Rights and the Environment’. HRC, Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, para. 14.

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10.1.3 The Proposed Right from a Policy Perspective Proponents of a substantive environmental human right77 count among its merits the fact that, when couched in human rights terms, environmental protection objectives would gain added weight, and indeed would be accorded priority over other competing socioeconomic objectives. As already noted, proponents further assume that human rights-based environmental objectives ultimately could be vindicated through recourse to established human rights processes and institutions, thereby exposing untoward domestic environmental practices to international scrutiny and pressure for change. Recognising the difficulties associated with immediate implementation, proponents tend to locate a substantive environmental human right among ESCRs.78 An environmental human right therefore would be implementable only progressively over time79 and subject to the state’s available resources,80 thereby potentially adding another element of uncertainty as to its normative status.81 In response, in the 1980s the idea of a ‘minimum core content’ of ESCRs not subject to such limitations gained currency in human rights debates.82 It is now generally endorsed as a state’s ‘obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights … incumbent upon every state party’.83 Of course, the specific core content of any individual ESCR is subject to evolution  – and expansion  – through its articulation in the human rights discourse at global, regional and national levels, as well as related developments, such as the conceptual linking of human rights and ‘social protection floors’.84 As a result, any ESCR, even one whose initially defined contours are vague or open-ended, might in due course be deemed ever more, if not fully, justiciable or open to an assessment of states’ compliance therewith. It is against this backdrop that advocates of a general environmental human right are apt to assert that an environmental right could be accorded normative specificity analogously by reference to, for example, international environmental quality standards, the principle of sustainability or the application of the precautionary approach.85 However, giving effect to a substantive environmental human right by fleshing out its normative contents involves a task qualitatively different from what might be called for in fully operationalising other ESCRs, such as, for example, the right to health,86 or even the right to adequate

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As against procedural entitlements as human rights as discussed below, text at notes 101–103. See generally Boyle, ‘Human Rights and the Environment’, 633. However, the Committee on Economic, Social and Cultural Rights suggested early on that many of the Covenant provisions were capable of being implemented immediately. See CESCR, General Comment No. 9: The Domestic Application of the Covenant, 3 December 1998, UN Doc. E/C12/1988/24, para. 10. See e.g. Art. 2(1) ICESCR. For a discussion of the dimension of this problem, see Dennis and Stewart, ‘Justiciability of ESCRs’, 464. See e.g. P. Alston, ‘Out of the Abyss: The Challenges Confronting the New U.N. Committee on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 332 at 351–355. CESCR, General Comment No. 3:  The Nature of States Parties’ Obligations (Art. 2(1) ICESCR), 14 December 1990, UN Doc. E/1991/23, para. 10. See also A. Eide, ‘Realization of Social and Economic Rights and the Minimum Threshold Approach’, in R. Claude and B. Weston (eds.), Human Rights in the World Community:  Issues and Action, 2nd ed. (Philadelphia:  University of Pennsylvania Press, 1992), p.  158; and M. Langford (ed.), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge: Cambridge University Press, 2009). See HRC, Report of the Secretary-General on the question of the realization in all countries of economic, social and cultural rights, 22 December 2014, UN Doc. A/HRC/28/35. See e.g. Rodríguez-Rivera, ‘Is the Human Right to Environment Recognized’, 11–13; and Shelton, ‘Developing Substantive Environmental Rights’, 120. On the relatively limited definitional issues involved in the ‘right to health’, see B. Toebes et al. (eds.), The Right to Health as a Human Right in International Law (Oxford: Hart, 1999), pp. 281–289.

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food.87 In short, the specification of the environmental right, because of its potentially major cross-sectoral implications,88 is likely to involve uniquely complex social and economic policy choices.89 This in turn would raise questions not only about the proper division of labour between human rights and environmental institutions, but also about the appropriate locus of decision-making at the international as against the national level.90 There is no gainsaying the fact that such an entitlement would shift traditional demarcation lines between domestic and international jurisdiction by turning the right into a platform for ‘internationalising’ national decision-making in sensitive core areas of traditional state sovereignty.91 Given that socioeconomic engineering is an inevitable, integral feature of a human rights-based approach to vindicating environmental objectives,92 the decision-making bodies’ technical competency and democratic legitimacy become additional serious concerns.93 Indeed, the claim that an environmental human right might help to strengthen environmental governance generally94 is undercut precisely by this blurring of the lines of responsibility between the separate branches of government in a democratic system.95 On the eve of the adoption of the Optional Protocol to the ICESCR, Michael Dennis and David Stewart laid out convincingly the pertinence of these ‘systemic’ or rule-of-law-based concerns potentially raised by any ESCR deemed justiciable.96 In the context of an environmental human right adjudication, these concerns, if anything, would be even more justified. Leaving aside other possible shortcomings,97 it is the environmental human right’s basic redundancy that crucially undermines the cogency of any proposal advocating its international recognition.98 Human rights instruments have obvious operational implications for environmental 87

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See CESCR, General Comment No. 12: The Right to Adequate Food (Art. 11 ICESCR), 12 May 1999, UN Doc. E/ C.12/1999/5, to which several states raised objections. As to the US reaction, see e.g. [2001] Digest of the Unites States Practice in International Law 281. See also M. Bothe, ‘Les droits de l’homme et le droit de l’environnement: Procédures de mise en œvre’, in M. Prieur and C. Lambrechts (eds.), Mankind and the Environment:  What Rights for the Twenty-First Century? Études en homage à Alexandre Kiss (Paris: Editions Frison-Roche, 1998), p. 113. This dilemma would not be significantly alleviated by recourse to the minimum core concept, since a state’s ‘core obligations’ are likely to be circumscribed in exceedingly general terms or unlikely to go beyond what the state would be required to undertake to avoid violating established human rights, such as to the rights to life, physical well-being or property. See Dennis and Stewart, ‘Justiciability of ESCRs’, 515. Of course, in theory states enjoy a margin of appreciation to determine national resource policies and priorities. However, as experience shows, human rights institutions may take a narrow view of states’ discretion or completely disregard it. See e.g. CESCR, An Evaluation of the Obligation to Take Steps to the ‘Maximum of Available Resources’ under an Optional Protocol to the Covenant, 21 September 2007, UN Doc. E/C.12/2007/1, para. 11. As to the problem of treaty-monitoring bodies’ conflating human rights promotion and interpretation functions, see e.g. K. Mechlem, ‘Treaty Bodies and the Interpretation of Human Rights’ (2009) 42 Vanderbilt Journal of Transnational Law 905. Speaking of ESCRs generally, Dennis and Stewart, ‘Justiciability of ESCRs’, 498, pertinently ask: ‘should it be the function of the [international human rights] adjudicators to “second-guess” decisions concerning the use of scarce resources, including those taken by democratically elected governments?’ See Boyle, ‘Human Rights and the Environment’, p. 613. See, in particular, High Court of Hong Kong, Clean Air Foundation Limited & Gordon David Oldham v.  The Government of the Hong Kong Special Administrative Region [2007] HKCFI 757, para. 43. See also M. Kanetake, ‘UN Human Rights Treaty Monitoring Bodies before Domestic Courts’ (2013) 67 International Comparative Law Quarterly 201–232, 229–230 (noting that ‘the more faithful [domestic] judicial organs are to the separation of powers and to the legislative authority of political organs, the less amenable are [domestic] courts to the use of formally nonbinding international instruments, including the monitoring bodies’ Comments, Observations and Views’). Dennis and Stewart, ‘Justiciability of ESCRs’, 506–515. Such as the right’s limited preventive function. See in particular, Boyle, ‘The Role of International Human Rights Law’, p. 53; and J. G. Merills, ‘Environmental Protection and Human Rights: Conceptual Aspects’, in A. Boyle and M. Anderson (eds.), Human Rights Approaches

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protection purposes. Thus, a rich practice within the European and Inter-American regional systems of invoking established human rights, of both the political and civil rights and ESCR categories,99 testifies persuasively to the fact that environmental concerns are routinely being redressed by application of established human rights norms.100 The redundancy-based argument against recognition of an environmental human right is further strengthened by the existence of procedural rights that complement and support, often in critical fashion,101 the invocation of established substantive human rights for protecting the environment.102 Given that there is virtually universal agreement that the informational, participatory and remedial rights concerned are secure features of today’s international human rights landscape,103 there is no need to elaborate further on this fact here. It is this well-tried pathway of invoking established and justiciable human rights, both substantive and procedural, that should give the lie to the need for an independent substantive environmental right. As the Committee of Ministers of the Council of Europe pertinently observed, although the European Convention system does not specifically recognise an environmental right, it ‘already indirectly contributes to the protection of the environment through existing Convention rights and their interpretation in the case-law of the European Court of Human Rights’.104 There was, so the Committee argued, therefore no need for legislative intervention to establish an environmental right. Greater public awareness of the human rights implications of environmental degradation, though important, could be achieved by better publicising the functional interrelationship between human rights and the environment.105 Nevertheless, Alan Boyle specifically points to the need to counteract states’ inaction on the climate change front, as a ‘most forceful’ argument against redundancy.106 However, according to the Human Rights Council itself, the adverse effects of climate change are amenable to being addressed through the invocation of established human rights.107 Indeed, as climate change increasingly is being recognised as threatening the very existence of humanity on planet earth,108 it is the violation of the right to life – its normative status unchallengeable, its invocation convincingly justifiable – rather than that of a ‘right to a healthy environment’, that provides the strongest

to Environmental Protection (Oxford: Clarendon Press, 1996), p. 30, who warns against creating new rights dealing with matters that are already covered by existing rights. 99 See e.g. Council of Europe, Manual on Human Rights and the Environment, pp. 143–147. 100 This is also fully acknowledged by the Human Rights Council. See UNHRC, Analytical Study on the Relationship between Human Rights and the Environment, paras. 7–9. Tellingly, the topic of the Council’s Special Rapporteur is ‘human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment’ rather than ‘the human right to such an environment’. 101 Certainly, at one point the strongest argument for a human right to the environment focused on procedural empowerment. 102 See e.g. Art. 1 of the Regional Agreement on Access to Information, Participation and Justice in Environmental Matters in Latin America and the Caribbean, Escazú, 4 March 2018, Doc. LC/CNP10.9/5; and Handl, ‘Human Rights and Protection of the Environment’, pp. 318–326. 103 See e.g. M. Fitzmaurice, ‘Environmental Degradation’, in D. Moeckli et al. (eds.), International Human Rights Law (Oxford: Oxford University Press, 2010). 104 Parliamentary Assembly of the Council of Europe, Recommendation 1614 (2003), para. 4. 105 One step in this direction was the publication and distribution of the Council of Europe’s Manual on Human Rights and the Environment. 106 Boyle, ‘Human Rights and the Environment’, pp. 613 and 633, respectively. 107 HRC, Human rights and climate change, 22 July 2015, UN Doc. A/HRC/RES/29/15, preamble. 108 See e.g. R. Monroe, ‘New Climate Risk Classification Created to Account for Potential “Existential” Threats’, Scripps Institution of Oceanography, 14 September 2017, quoting Y. Xu and V. Ramanathan, ‘Well Below 2°C: Mitigation Strategies for Avoiding Dangerous to Catastrophic Climate Changes’ (2017) 114 Proceedings of the National Academy of Sciences 10315.

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platform from which to challenge uninformed, indifferent or wilfully damaging governmental decision-making that contributes to global warming.109

10.2 Rights of Nature 10.2.1 Introduction The second part of this chapter examines the idea of ‘rights of nature’110 as the epitome of a non-instrumentalist or non-anthropocentric approach to the protection and conservation of the environment. It is undeniable that the rights-of-nature concept can exert strong moral appeal and serve as a useful tool in any political discourse about the environment.111 Specifically, it represents an invitation to embark on a process of reconceptualising and deepening our understanding of the relationship between human beings and nature. Such re-examination should lead to recognition that human beings are ‘one life-form among many evolved from the same natural processes’, and also recognition of the existence of ‘biophysical limits to human activity’, as well as the fact that ‘our socioeconomic systems are embedded in natural systems’.112 However, it is far from certain, indeed implausible, that adoption of such a perspective also entails the need to endow Mother Earth with rights in her own name in order to ensure her protection from environmentally harmful activities carried on by the human species. As a matter of fact, as an operational legal concept – amenable to recognition and compliance review by judicial or quasijudicial bodies – it represents an even more questionable proposition than the human right to a healthy environment. The concept’s core contents are often defined as nature’s right to exist, persist, maintain and regenerate its vital cycles. Of course, these aspects of the entitlement can be and have been further refined.113 However, even additional specification of its contents leaves the concept essentially open-ended. Its invocation in any legal proceeding, whether domestic or international, would therefore dramatically accentuate the issues identified above concerning process (including standing), the decision-maker’s competence and democratic legitimacy. Beyond this application/implementation issue, there lurks, however, a bigger conceptual problem: proponents’ willingness to bestow on nature and its components – rivers, mountains and other landscapes – legal personality. After all, the idea of conferring such status has a long and illustrious history, beginning with Justice Douglas’ ruminations in Sierra Club v. Morton.114 If corporations have rights, it has been rightly asked, why should not rivers?115 Thus, the ascription of legal personality to other entities, inanimate objects or things is entirely conceivable, and 109

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For recognition that a climate change-related complaint alleging a threat to ‘fundamental constitutional rights to life and liberty’ is ‘of a different order than a typical environmental case’, see US District Court of Oregon, Juliana v. United States, 217F.Supp.3d 1224, at 1261. While closely related, the terms ‘rights of nature’ and ‘rights of the environment’ are not synonymous. The former, however, captures the entitlement issue here under review better because more comprehensively. It is also the term generally being given preference in relevant debates and the literature and thus will be used in this chapter. See e.g. D. R. Boyd, The Rights of Nature: A Legal Revolution That Could Save the World (Toronto: ECW Press, 2017); and O. Houck, ‘Noah’s Second Voyage: The Rights of Nature as Law’ (2017) 31 Tulane Environmental Law Journal 1 at 49–50. See ‘Earth Charter Affiliate speaks in UN General Assembly Dialogue on Harmony with Nature’, 5 May 2017, available at http://earthcharter.org/news-post/earth-charter-affiliate-speaks-dialogue-united-nations-general-assembly/. See below, text at note 136. US Supreme Court, Sierra Club v. Morton, 405 U.S. 727, at 743 (1972). See J.  Turkewitz, ‘Corporations Have Rights. Why Shouldn’t Rivers?’, The New  York Times, 26 September 2017, available at www.nytimes.com/2017/09/26/us/does-the-colorado-river-have-rights-a-lawsuit-seeks-to-declare-it-aperson.html. See also the debate about animals’ ‘nonhuman personhood’. See e.g. J. Sebo, ‘Should Chimpanzees be Considered ‘Persons?’, The New York Times, 8 April 2018, p. SR10.

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indeed has become a reality in some jurisdictions. Rather, it is the definitional claim that nature has ‘intrinsic value’ that gravely compromises the credibility of the ‘rights of nature’ concept. Whether or not one agrees that ‘intrinsic value’ is self-evidently an oxymoron,116 the very act of ‘recognising’ or ‘ascribing’ rights to nature is one of human valuation. As Baird Callicott puts it, ‘there can be no value apart from the evaluator’ and ‘all value is in the eye of the beholder’.117 Indeed, it is not by legislative or judicial fiat bestowing personhood that nature’s allegedly intrinsic, thus by definition pre-existing, rights are being formally recognised. Rather it is the – most likely gradual – emergence of a social consensus regarding the merits of protecting nature and the specific scope of legal protection which characterises the process of recognition. Instead of representing the rights of nature as grounded in some principle of meta-law, and recognition thereof as mere discovery and affirmation of a priori rights, any extension of legal rights to nature is informed by a conscious political choice, a reflection of human value judgements. We may seek to bestow special protective status on nature or its components for obviously selfish reasons, to protect the human species in both a material and spiritual sense. Our willingness to protect parts of nature seemingly of no utility to humans may be a calculated response to unknown risks of interfering with nature. Or we may do so to avoid value deprivations that we might otherwise experience if we acted in a manner knowingly disrespectful of other life forms, nature and natural processes generally. As the limits of our appreciation of the human–nature interface keep being pushed back, the case for legal protection of nature118 continues strengthening commensurately.119 Underlying this process is a human sense of ‘ecospheric belonging’, what the Norwegian philosopher Arne Naess has called ‘a deep identification of individuals with all life forms’.120 Put differently, it is expressive of a wider ecologically informed self-interest that recognises that all forms of life, inanimate objects and nature as such may have value independent of any narrowly defined utility to human beings.121 Assuming, then, that the valuing agent espouses an appropriately informed and necessarily evolving perspective on the human stake in protecting and conserving the natural world of which we are an integral part, the construct of nature’s ‘intrinsic’ value-based rights becomes redundant. Of course, proponents of the rights of nature are likely to disagree. The realisation of these rights, they might argue, cannot be entrusted to human awareness, sensitivity or morality. Such linkage would provide too weak a basis from which to protect nature (and thereby ourselves). They insist on divorcing protection of nature from considerations of human welfare by ascribing intrinsic value to nature and postulating its recognition as the bearer of legal rights. However, this very act of ascription proves the point: ultimately, any decision to extend to nature legal protection is self-referential, a reflection of the very human values that underpin the legal system. As Christopher Stone appropriately reminds us: ‘[i]nasmuch as an inanimate object like 116

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See e.g. M. Drenthen, ‘The Paradox of Environmental Ethics. Nietzsche’s View of Nature and the Wild’ (1999) 21 Environmental Ethics 163 at 172; and generally, M. J. Bowman, ‘Biodiversity, Intrinsic Value, and the Definition and Valuation of Environmental Harm’, in M. J. Bowman (ed.), Environmental Damage in International and Comparative Law: Problems of Definition and Valuation (Oxford: Oxford University Press, 2002), p. 41. B. Callicott, ‘Animal Liberation:  A Triangular Affair’, in E. C. Hargrove (ed.), The Animal Rights/Environmental Ethics Debate (Albany: State University of New York Press, 1992), p. 48. This certainly would include all sentient non-human beings, possibly even plants. See e.g. J. Klein, ‘Sedate a Plant, and It Seems to Lose Consciousness. Is it Conscious?’, The New York Times, 6 February 2018, p. D2. The ascendancy of this ecocentric perspective is also evident in the common usage of concepts such as intergenerational responsibility, ecosystem nexus and ‘harmony with nature’ in any discourse about sustainable development. A. Naess, Ecology, Community and Lifestyle:  Outline of an Ecosophy (Cambridge:  Cambridge University Press, 1989), p. 85. See G. P. Supanich, ‘The Legal Basis of Intergenerational Responsibility:  An Alternative View  – the Sense of Intergenerational Identity’ (1992) 3 Yearbook of International Environmental Law 94 at 104.

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a river can neither be benefitted nor harmed in any ordinary sense’, the level of its protection or conservation will be the one that the ‘law decrees to be the legally mandated one’.122 Thus, any extension of legal rights to nature or its components invariably involves human decisionmaking, reflecting human values and utilitarian considerations. To honestly acknowledge this fact should lead to better calibrated pro-nature advocacy. After all, proponents ought not to obsess about gaining acceptance of the status of nature as a legal person, but ought instead to focus on exploring, explaining and convincing the public of the specific reasons why it would be in the human interest (widely defined) to offer it legal protection. 10.2.2 Trends in Decision-Making At the outset, one ought to emphasise that there is no evidence that the ‘rights of nature’ concept is presently part of international law, let alone on its way to becoming accepted as such. What little indirect support might be discernible internationally is derived from non-binding resolutions or similar documents. By the same token, its endorsement in some domestic legal systems hardly provides probative evidence of its potential ascendancy to international normativity. To the contrary, domestic legal experience shows persuasively the problematic character of rights-of-nature-based decision-making about the environment or natural resources. 10.2.2.1 International Normative Developments Prominent among the sources that campaigners for the rights of nature tend to cite in support of their position is the World Charter for Nature.123 The Charter expresses the conviction that ‘[e]very form of life is unique, warranting respect regardless of its worth to man, and, to accord other organisms such recognition, man must be guided by a moral code of action’.124 However, overall the Charter  – a formally non-binding resolution of the General Assembly  – clearly reflects an instrumentalist outlook.125 Another instrument frequently invoked is the Convention on Biological Diversity, whose preamble acknowledges ‘the intrinsic value of biological diversity’.126 Alas, the Convention, much like the World Charter for Nature itself, predominantly reflects an instrumentalist approach.127 The United Nations Millennium Declaration128 endorses ‘respect for nature’ as a ‘fundamental value essential to international relations in the twenty-first century’. It explains: ‘Only in this way can the immeasurable riches provided to us by nature be preserved and passed on to our descendants. The current unsustainable patterns of production and consumption must be changed in the interest of our future welfare and that of our descendants.’129 Finally, it is worth mentioning that neither the Rio+20 final conference 122

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C. D. Stone, Should Trees Have Standing?, 3rd ed. (New York: Oxford University Press, 2010), p. 169 (emphasis in original). UNGA, Resolution 37/7 World Charter for Nature, 28 October 1982, UN Doc. A/RES/37/7, Annex. See also operational paragraph 1: ‘Nature shall be respected and its essential processes shall not be impaired.’ Thus the preambular paragraphs in particular emphasise the fact of human dependency on the functioning of natural systems and the need to ensure ‘the preservation of the species and ecosystems for the benefit of present and future generations’. Convention on Biological Diversity, Rio de Janeiro, 5 June 1992, in force 29 December 1993, 1760 UNTS 79; (1992) 31 ILM 818. See also the Convention on the Conservation of European Wildlife and Natural Habitats, Berne, 19 November 1979, in force 1 June 1982, ETS No. 104, whose preamble recognises ‘that wild flora and fauna constitute a natural heritage of aesthetic, scientific, cultural, recreational, economic and intrinsic value that needs to be preserved and handed on to future generations’. See, in particular, Art. 1 of the Convention on Biological Diversity. See also Bowman, ‘Biodiversity’, p. 47. UNGA, Resolution 55/2 United Nations Millennium Declaration, 18 September 2000, UN Doc. A/RES/55/2. Ibid., para. 6.

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document – ‘The Future We Want’130 – nor the 2015 Global Development Agenda131 provides much support for the ‘rights of nature’ idea.132 In fact, they both evince a strongly instrumentalist perspective on the protection of natural resources and ecosystems.133 Other evidence that advocates advance in support of rights of nature as an international normative concept is of even more dubious quality. In 2010 the World People’s Congress on Climate Change and Mother Earth met in Bolivia and adopted a ‘Universal Declaration of Rights of Mother Earth’.134 The Declaration captures well the expectations of the ‘rights of nature’ movement generally. It envisages, inter alia, Mother Earth as a self-regulating community of interrelated beings, ascribes inherent and inalienable rights to it, and asserts that any conflict between rights holders must be resolved in a way that maintains the integrity, balance and health of Mother Earth.135 Among Mother Earth’s specific rights – and those of all beings of which she is composed – the Declaration lists the rights to life and to exist; to be respected; to continue their vital cycles and processes free from human disruptions; and to maintain their identity and integrity as a distinct, self-regulating and interrelated being.136 In 2012 the International Union for the Conservation of Nature (IUCN) World Congress adopted a resolution in support of the ‘rights of nature’ with the aim of developing a Universal Declaration of the Rights of Nature.137 However, to date there has been no significant IUCN follow-up on this resolution. By contrast, a parallel effort, formally launched in 2000 but tracing its origin to discussions at the UN Conference on Environment and Development in 1992, the so-called Earth Charter, expressly places human beings in the centre of things, albeit while adopting an enlightened ecosystem perspective. It calls upon human beings to ‘recognize that all beings are interdependent and every form of life has value regardless of its worth to human beings’.138 Since 2009 the UN General Assembly has engaged in an interactive dialogue139 ‘to improve the ethical basis of the relationship between humankind and the Earth in the context of sustainable development’.140 As a UN website explains, this initiative ‘speaks to the need to move away from a human-centered world-view – or “anthropocentrism” – and establish a non-anthropocentric,

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UNGA, Resolution 66/288 on The Future We Want, 11 September 2012, UN Doc. A/RES/66/288, paras. 4 and 6. UNGA, Resolution 70/1 on Transforming Our World: The 2030 Agenda for Sustainable Development, 21 October 2015, UN Doc. A/RES/70/1. Admittedly, the latter affirms ‘that planet Earth and its ecosystems are our common home and that “Mother Earth” is a common expression in a number of countries and regions’. Ibid., para. 59. See e.g. ibid., preamble:  ‘We are determined to protect the planet from degradation, including through sustainable consumption and production, sustainably managing its natural resources and taking urgent action on climate change, so that it can support the needs of the present and future generations’ (emphasis added). See World People’s Congress on Climate Change and the Rights of Mother Earth, Universal Declaration of Rights of Mother Earth, Cochabamba, 22 April 2010. See Art. 1 of the Universal Declaration of Rights of Mother Earth. The Declaration lists additionally: the right to water as a source of life; the right to clean air; the right to integral health; the right to be free from contamination, pollution and toxic or radioactive waste; the right to not have its genetic structure modified or disrupted in a manner that threatens its integrity or vital and healthy functioning; and the right to full and prompt restoration for the violation of the rights recognised in the Declaration caused by human activities. See World Conservation Congress, Incorporation of the Rights of Nature as the organisational focal point in IUCN’s decision-making, 6–15 September 2012, WCC-2012-Res-100-EN, para. 3. Principle 1, para. 1(a) of the Earth Charter, available at http://earthcharter.org/discover/the-earth-charter/. The Charter garnered the support of the World Conservation Congress-IUCN at its third session in Bangkok in 2004, as ‘an inspirational expression of civil society’s vision for building a just, sustainable and peaceful world’. See UNGA, Resolution 64/196 on Harmony with Nature, 12 February 2010, UN Doc. A/RES/64/196. UNGA, Resolution 71/232 on Harmony with Nature, 6 February 2017, UN Doc. A/RES/71/232, para. 3.

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or Earth-centered, relationship with the planet’.141 However, while acknowledging ‘that some countries recognize the rights of nature in the context of sustainable development’, the General Assembly has only called for ‘holistic and integrated approaches to sustainable development,’142 and has shown no inclination to support the ‘rights of nature’ as a potential international legal concept. Still, as the Secretary-General’s 2017 report143 documents, the rights of nature idea has engendered a veritable cottage industry of earth jurisprudence-based initiatives, programmes and workshops, including the organisation of ‘rights of nature tribunals’.144 In this vein, in 2014 a self-appointed ‘international rights of nature tribunal’145 adjudicated twelve cases over two days and, using as its legal framework the Rights of Nature and the Universal Declaration of the Rights of Mother Earth, found corporations, the United Nations and various governments guilty of violating nature’s rights.146 At its 2017 session the tribunal, in all the cases it examined, found ‘serious and systematic violations of the Universal Declaration of the Rights of Mother Earth’ and several cases in which ‘the harm was so severe as to constitute ecocide’.147 10.2.2.2 Domestic Trends In several Latin American countries the ‘rights of nature’ doctrine has gained a legal foothold. Thus, with Ecuador amending its constitution in 2008, Bolivia adopting a ‘Law of Mother Earth’ in 2011 and the Colombian Supreme Court decision in the River Atrato case in 2016,148 the door ostensibly opened to the assertion of non-anthropocentric claims for the protection of nature. Similar ‘rights of nature’-imbued judicial or legislative interventions have occurred in India and New Zealand, respectively.149 However, this practice is subject to a significant caveat: first, in situations in which nature protection/conservation and development objectives clash, the concept – unsurprisingly – tends to prove to be of questionable effectiveness.150 Second, despite its rhetorical claim, the ‘rights of nature’ paradigm is being employed not to protect nature per se, i.e. without regard for nature’s utility for human beings. Rather, it tends to serve as a means to protect human material and spiritual well-being that in turn depend on giving protected status to landscapes, mountains or rivers and their watersheds. In short, domestic legal practice offers little support for ‘acceptance and recognition’ of a non-instrumentalist ‘rights of nature’ concept in international law. 141

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‘General Assembly convenes dialogue on Harmony with Nature,’ 17 April 2014, available at www.un.org/en/ development/desa/news/sustainable/harmony-with-nature.html. UNGA, Resolution 72/223 on Harmony with Nature, 17 January 2018, UN Doc. A/RES/72/223. UNGA, Harmony with Nature, Report of the Secretary-General, 19 July 2017, UN Doc. A/72/175. Ibid., para. 88. For a discussion of the origin of the idea for the tribunal and its workings, see e.g. J. Penca, ‘Escaping from Law, Appealing to It: The Experience of a Civil Society Tribunal’, in A. Follesdal and G. Ulfstein (eds.), The Judicialization of International Law: A Mixed Blessing? (Oxford: Oxford University Press, 2018). For a summary, see ‘Rights of Nature Tribunal Press Conference – UNFCCC COP20 in Lima’, available at http:// therightsofnature.org/rights-of-nature-tribunal-press-lima/. ‘Case Findings by the Tribunal in Bonn’, available at https://therightsofnature.org/tribunal-cases-bonn/. Case T-622 of 2016, 10 November 2016, at https://redjusticiaambientalcolombia.files.wordpress.com/2017/05/sentenciat-622-de-2016-rio-atrato.pdf. Given limitations of space, it is not possible to analyse here in detail this fledgling practice. The author therefore plans to publish a fuller review thereof as a separate paper. For critical comments see e.g. D. Humphreys, ‘Know Your Rights: Earth Jurisprudence and Environmental Politics’ (2015) 10 The International Journal of Sustainable Policy and Practice 1 at 10; F. Chávez, ‘Bolivia’s Mother Earth Law Hard to Implement’, Inter Press Service, 19 May 2014, available at www.ipsnews.net/2014/05/bolivias-mother-earthlaw-hard-implement/; and A. Rosencranz and D. K. Kaul, ‘Are Rivers Really Living Entities?’ (2017) 47 Environmental Policy and Law 54 at 57.

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10.3 Conclusions As has been shown, current general international law does not support the existence of a substantive environmental human right. Proposals to establish such a right at the international level can be challenged on the grounds of practicality and need. For several decades now these and related questions have generated a vigorous debate in multiple fora and settings, both national151 and international. While the idea of an environmental human right is popular, has attracted significant support and has triggered concerted promotional efforts, legitimate doubts about its feasibility as a justiciable normative concept have not been dispelled. Finally, similar reservations apply a fortiori to ‘rights of nature’ proposals. Based on the idea of nature’s intrinsic rights, the proposals are inherently problematic conceptually. Unsurprisingly, there is no discernible trend at the international level towards recognising rights of nature as an operational international entitlement. While the concept may appeal as a rallying cry for enlightened environmental policy-making, as a legal framing device to enable third-party review and enforcement of efforts directed at protecting and conserving the environment, it would simply be unworkable.

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As to national debates in, for example, Norway and South Africa over whether or not the country should ratify or accede to the ICESCR’s Optional Protocol, see e.g. I. L. Backer, ‘Ideals and Implementation – Ratifying Another Complaints Procedure?’ (2009) 27 Nordisk Tidsskrift for Menneskerettigheter 91–96; and F. Viljoen and N. Orago, ‘An Argument for South Africa’s Accession to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights in the Light of its Importance and Implications’ (2014) 17 Potchefstroom Electronic Law Journal 2554, respectively.

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11 The Right to Environment A New, Internationally Recognised, Human Right Luis E. Rodríguez-Rivera

11.1 Introduction The development and formal recognition of the right to environment as a human right under international law has been the object of intense debate for well over fifty years. In 1995, approximately halfway into this period, Günther Handl published a frequently cited article dismissing the existence and need for a human right to environment.1 A few years later, I wrote an article rebutting Handl’s analysis and conclusions on the matter and proposing a more progressive or modern approach to the sources doctrine under international law.2 In his most recent work on the human right to environment (included as a chapter in this book), Handl restates most of the arguments raised in his prior article.3 In an effort to summarise the substance of the debate on the right to environment, I will briefly outline arguments generally used by those rejecting the existence and international recognition of the human right to environment, as well as counterarguments previously raised to rebut the same. 11.1.1 Arguments against the Existence and Recognition of the Human Right to Environment First, a human right to environment would suffer from inherent indeterminacy because of its uncertain or ambiguous definition. Second, a human right to environment would have a redundancy effect detrimental to environmental protection, as well as to environmentalists’ efforts in this regard given the existence of other environmental legal regimes, strategies and instruments, both at the national and international levels, including the derivative use of other recognised and applicable human rights. Third, a human right to environment would be non-justiciable and non-enforceable. Fourth, a human right to environment would, by definition, suffer an inherent anthropocentric bias. And fifth, a human right to environment would devalue or debase the human rights currency.

1

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See G. Handl, ‘Human Rights and Protection of the Environment: A Mildly Revisionist View’, in A. A. Cançado Trindade (ed.), Human Rights and Environmental Protection (San José, Costa Rica:  Instituto Interamericano de Derechos Humanos, 1992), p. 117; see also G. Handl, ‘Human Rights and Protection of the Environment’, in A. Eide, C. Krause and A. Rosas (eds.), Economic, Social and Cultural Rights: A Textbook (Dordrecht: Nijhoff, 2011), p. 303. See L. E. Rodríguez-Rivera, ‘Is the Human Right to Environment Recognized under International Law? It Depends on the Source’ (2001) 12 Colorado Journal of International Environmental Law and Policy 1. See G. Handl, in this volume.

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11.1.2 Counter-Arguments Rebutting the Above The arguments stated above are very similar to those used by traditionalists when criticising new human rights in general. Thus, the counter-arguments that follow may sound familiar. First, the uncertainty or ambiguity that results in the alleged indeterminacy of the right to environment’s content is easily overcome by international, regional and national tribunals who are at this stage more than capable of providing content to said right.4 Second, the perceived redundancy argument attributed to the human right to environment vis-à-vis other environmental protection strategies ignores the fact that (a) the right to environment is designed to fill a very significant gap within international environmental law  – that is, the protection of human life and dignity from threats related to environmental degradation caused by the acts or omissions of an individual’s own state government, and (b) no particular strategy by itself can address all of the complex problems related to the environment, therefore additional complementary strategies, such as a rights-based approach, should be welcomed.5 Third, the purported non-justiciability and non-enforceability of the right to environment is without merit since human rights are, as a matter of fact, implemented, supervised and enforced by an extensive system of international, regional and national tribunals and commissions, and, more importantly, enforceability is not a definitive criterion in establishing and recognising the existence of a human right.6 Fourth, the so-called anthropocentric bias of the human right to environment is overstated considering that the intrinsic value of the environment has been incorporated into the definition of an expansive right to environment (both substantively and procedurally), and that the implementation of said expansive right would result in benefits to both humans and nature.7 And fifth, the potential devaluation or debasing of the human rights currency is always a persuasive argument but should not curtail a priori the evaluation of new rights, as each proposal must measure up to human rights standards if it is to gain international recognition.8

11.2 International Recognition of the Human Right to Environment In ‘The Human Right to a Clean Environment and Rights of Nature: Between Advocacy and Reality’, Günther Handl reiterates that the human right to environment is not recognised under international law, as is evidenced by the ‘absence of adequate, across-the-board support for the notion of a free-standing substantive right to a healthy, satisfactory or sustainable environment’.9 4

5 6

7 8

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See e.g. A. Kiss and D. Shelton, International Environmental Law (New  York:  Transnational Publishers, 1991); F. Du Bois, ‘Social Justice and the Judicial Enforcement of Environmental Rights and Duties’, in A. E. Boyle and M. R. Anderson (eds.), Human Rights Approaches to Environmental Protection (Oxford: Clarendon Press, 1996); B. H. Weston and D. Bollier, Green Governance: Ecological Survival, Human Rights, and the Law of the Commons (Cambridge: Cambridge University Press, 2013), pp. 97–99. See Rodríguez-Rivera, ‘Is the Human Right to Environment Recognized?’, 32 and 34–36. See A. A. Cançado Trindade, ‘The Contribution of International Human Rights Law to Environmental Protection, with Special Reference to Global Environmental Change’, in E. B. Weiss (ed.), Environmental Change and International Law:  New Challenges and Dimensions (Tokyo:  United Nations University Press, 1992), pp. 302–304; R. Higgins, Problems and Process: International Law and How We Use It (Oxford: Clarendon Press, 1994), pp. 99–100. See e.g. Kiss and Shelton, International Environmental Law, p. 11; Weston and Bollier, Green Governance, pp. 74–76. See Rodríguez-Rivera, ‘Is the Human Right to Environment Recognized?’, 36. On setting criteria for new human rights, see e.g. P. Alston, ‘Conjuring Up New Human Rights: A Proposal for Quality Control’ (1984) 78 American Journal of International law 607 at 614–615; S. P. Marks, ‘Emerging Human Rights:  A New Generation for the 1980s’ (1981) 33 Rutgers Law Review 435 at 439–441; R. Y. Rich, ‘The Right to Development as an Emerging Human Right’ (1983) 23 Virginia Journal of International Law 287 at 289–295; R. S. Pathak, ‘The Human Rights System as a Conceptual Framework for Environmental Law’, in E. B. Weiss (ed.), Environmental Change and International Law: New Challenges and Dimensions (Tokyo: United Nations University Press, 1992), p. 206. Handl, in this volume, p. 140.

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Of course, the evidence he seeks is of the traditional/consensual variety. For lack of space I will not revisit the debate regarding traditional vs. modern sources of international law.10 Instead, I will focus my comments on the alleged ‘absence of adequate, across-the-board support’ for the human right to environment. Handl posits that the absence of the right to environment from the Universal Declaration of Human Rights (1948)11 and the International Covenant on Economic, Social and Cultural Rights (1966)12 is a ‘key piece of the evidence’ against its international recognition.13 This statement clearly misses the point. At the time the human rights contained in these documents were discussed and recognised at the international level (1945–66), the development of environmental knowledge and sensibilities was at a nascent stage. John H. Knox, Special Rapporteur on Human Rights and the Environment to the UN Human Rights Council from 2015 to 2018, succinctly explained this point as follows: The drafters of the seminal human rights instrument, the 1948 Universal Declaration of Human Rights, did not include environmental rights. Nor, at the time, did the national constitutions to which the drafters looked for inspiration. The silence was understandable. Although humans have always known of our dependence on the environment, we were only beginning to realise how much damage our activities could cause to the environment and, as a result, to ourselves. Efforts to mitigate environmental degradation were then still in their infancy.14

The suggestion that the Stockholm Declaration on the Human Environment (1972)15 does not support the recognition of the human right to environment is misleading. First, the works of the Preparatory Committee of the 1972 UN Conference on the Human Environment reveal that the draft 1972 Stockholm Declaration was ‘based on the recognition of the rights of individuals to an adequate environment’.16 Second, the Stockholm Declaration announces in its first principle that ‘[m]an has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations’.17 Louis B. Sohn, one of the founding fathers of international environmental law and a participant in said conference, acknowledged that the use of more direct language within the Stockholm Declaration would have removed any doubt about the existence of the right to environment. Nonetheless, Sohn also reasoned that ‘[p]erhaps this phrase [in Principle 1] is meant to convey the existence of the right to an adequate environment’.18 Third, the fact that as early as 1972 the 10 11 12

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See Rodríguez-Rivera, ‘Is the Human Right to Environment Recognized?’’, 37–45. UNGA, Resolution 217A, 10 December 1948, UN Doc. A/810. International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, in force 3 January 1976, 993 UNTS 3. Handl, in this volume, p. 140. HRC, Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox (Preliminary Report), 24 December 2012, UN Doc. A/ HRC/22/43, para. 4; see also, Weston and Bollier, Green Governance, p. 285: ‘Most human rights treaties, declarations, and other international instruments do not reference the natural environment explicitly. This is so mainly because the majority of those instruments came into being before the environment – especially the global environment – became widely understood to require universally concerted attention and protection.’ Declaration of the United Nations Conference on Human Environment, 16 June 1972, UN Doc. A/Conf.48/14/Rev.1, (1972) 11 ILM 1416 (hereinafter ‘Stockholm Declaration’). Preparatory Committee for the United Nations Conference on the Human Environment, March 1972, UN Doc. A/ Conf.48/PC/17, para. 77. Stockholm Declaration, Principle 1 (emphasis added). L. B. Sohn, ‘The Stockholm Declaration on Human Environment’ (1973) 14 Harvard International Law Journal 434 at 455.

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international community met in Stockholm and agreed to recognise the human right to environment in a soft law document should not be trivialised or easily dismissed. On the contrary, this strategy – that is, the use of a non-binding or soft international legal instrument – set the standard for future dealings in the global community concerning the environmental problématique, as well as other complex modern international problems. The Association of Southeast Asian Nations’ (ASEAN) Human Rights Declaration (2012) (‘the right to a safe, clean and sustainable environment’),19 the Arab Charter of Human Rights (2004) (‘a right to a safe environment’),20 the Protocol of San Salvador to the American Convention on Human Rights (1988) (‘the right to live in a healthy environment’)21 and the African Charter on Human and Peoples’ Rights (1981) (‘the right to a general satisfactory environment favourable to their development’)22 expressly adopted the human right to environment. Although Handl accepts that these regional organisations formally recognised the substantive human right to environment, he surprisingly attempts to diminish the treaties’ evidentiary value by attacking the Southeast Asian, Arab, American and African human rights systems’ credibility ‘as a whole’.23 While Handl credits human rights tribunals and commissions within these regional systems with validating and implementing the human right to environment,24 and highlights that the African system reaffirmed its commitment to the human right to environment by expressly recognising the same in subsequent human rights treaties,25 he nevertheless concludes that these human rights systems do not have the capability of enforcing the human right to environment.26 I do not share Handl’s disparaging opinions regarding the above four regional human rights systems. Instead, I propose that their recognition of the human right to environment is representative of the international community’s acceptance, adoption and implementation of said right. In sharp contrast, Handl unconventionally ascribes much value to the European Union’s and the United States’ lack of express recognition of the right to environment. The alleged absence of an explicit expression on their part is identified by Handl as another ‘key piece of evidence’ in his assertion that the substantive right to environment is not internationally recognised. This interpretation is also flawed. To begin, the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998), an important European regional treaty, explicitly recognises the substantive right to environment (‘the right of every person of present

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Association of Southeast Asian Nations’ Human Rights Declaration, 18 November 2012, Arts. 28(f) and 36. Arab Charter on Human Rights, Tunis, 22 May 2004, in force 15 May 2008, (2005) 12 International Human Rights Reports 893, Art. 38. Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), San Salvador, 17 November 1988, in force 16 November 1999, (1988) OAS Treaty Series No. 69, Art. 11. African Charter on Human and Peoples’ Rights, Nairobi, 27 June 1981, in force 21 October 1986, 1520 UNTS 217, (1982) 21 ILM 58, Art. 24. Handl, in this volume, pp. 141ff. See e.g. AComHPR, Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria, Communication No. 155/96, 27 October 2001 (the ‘Ogoniland decision’); IACtHR, The Environment and Human Rights (State obligations in relation to the environment in the context of the protection and guarantee of the rights to life and to personal integrity – interpretation and scope of Articles 4(1) and 5(1) of the American Convention on Human Rights), Advisory Opinion OC-23/17 of 15 November 2017, Ser. A, No. 23. See Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), Maputo, 11 July 2003, in force 25 November 2005, reprinted in M. S. Nsibirwa, ‘A Brief Analysis of the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women’ (2001) 1 African Human Rights Journal 40 at 53, see Art. 18: ‘Right to a Healthy and Sustainable Environment’. See Handl, in this volume, pp. 141ff.

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and future generations to live in an environment adequate to his or her health and well-being’).27 The European Court of Human Rights has continuously validated environmentally related rights and obligations pursuant to the European Convention of Human Rights.28 As Weston and Bollier state: ‘on the basis of these cases alone, the right to a clean and healthy environment may be understood to be accepted as law, however implicitly, in the European human rights system.’29 Moreover, as Alan Boyle indicated regarding the European human rights system: So extensive is [the European Court of Human Rights’] growing environmental jurisprudence that proposals for the adoption of an environmental protocol have not been pursued. Instead, a Manual on Human Rights and the Environment adopted by the Council of Europe in 2005 recapitulates the Court’s decisions on this subject and sets out general principles.30

The Committee of Ministers of the Council of Europe has affirmed that its human rights system is ‘already indirectly contribut[ing] to the protection of the environment through existing Convention rights and their interpretation in the case-law of the European Court of Human Rights’.31 The fact that the European Union has not expressly incorporated the right to environment through a human rights treaty should not be determinative of its existence, particularly when said right has been effectively incorporated  – albeit indirectly as the Committee of Ministers of the Council of Europe admitted above – by the European Court of Human Rights and the Council of Europe, as well as its members’ national legislations.32 The same holds true for the United States, who as a member of the Organization of American States and the Inter-American human rights system, has also adopted robust national environmental regulatory and conservation legal regimes, in addition to abundant case law sustaining the same. Hence, the indirect recognition of the right to environment by the European Union and the United States has indeed led to implementation of effective state and international environmental protection and conservation policies. In turn, these examples reflect the diversity of ways in which the right to environment has been recognised and applied around the world.33 27

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Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, 25 June 1998, in force 30 October 2001, 2161 UNTS 447, Preamble and Art. 1. See e.g. ECtHR, López Ostra v. Spain (App. no. 16798/90), judgment, 9 December 1994; ECtHR, Guerra v. Italy (App. no.  14967/89), judgment, 19 February 1998; ECtHR, Öneryildiz v.  Turkey (App. no.  48939/99), judgment, 30 November 2004; ECtHR, Moreno Gómez v.  Spain (App. no.  4143/02), judgment, 16 November 2004; ECtHR, Taskin v. Turkey (App. no. 46117/99), judgment, 10 November 2004; ECtHR, Fadeyeva v. Russia (App. No. 55723/ 00), judgment, 9 June 2005; European Committee of Social Rights, Marangopoulos Foundation for Human Rights (MFHR) v. Greece (Complaint no. 30/2005), judgment, 6 December 2006, para. 221; ECtHR, Budayeva v. Russia (App. no. 15339/02), judgment, 20 March 2008; ECtHR, Tatar v. Romania (App. no. 67021/01), judgment, 27 January 2001. Weston and Bollier, Green Governance, p. 294. A. Boyle, ‘Human Rights or Environmental Rights? A Reassessment’ (2006–2007) 18 Fordham Environmental Law Review 471 at 485. Parliamentary Assembly of the Council of Europe, Recommendation 1614 on Environment and Human Rights, 27 June 2003, para. 4. Weston and Bollier, Green Governance, pp. 316–336. Former Special Rapporteur John H. Knox recently concluded: Taking into consideration the ratification of regional human rights agreements and environmental treaties, constitutions and national legislation, more than 150 States have already established legal recognition of the right to a healthy environment, with corresponding obligations. Many additional States have signed nonbinding international declarations that explicitly incorporate the right to a healthy environment, including the Stockholm Declaration of 1972 and the Malé Declaration on the Human Dimension of Climate Change of 2007. In total, 155 States have a binding legal obligation to respect, protect and fulfil the right to a healthy environment, while 36 States have expressed their support for the right to a healthy environment through nonbinding international declarations.

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Handl concedes that support for the recognition of the human right to environment ‘appears to have been gaining renewed momentum recently’.34 However, this concession is, at best, an understatement. Since the 1990s, the international community has produced an overwhelming number of international environmental instruments and actions that support the recognition and implementation of the human right to environment by the international community.

11.3 Sources of the Human Right to Environment States have expressed their consent to an environmental human right in a myriad of ways. Thousands of international and regional treaties, as well as state constitutions, laws and court opinions, have explicitly and implicitly adopted and implemented the human right to environment in all three of its formulations (autonomous, derivative and procedural).35 Hundreds of international, regional and national declarations, expressions and statements have been issued by states, international and regional organisations, non-governmental organisations, academic and research institutions, experts of all related disciplines, grass-roots and community movements, and environmental activists confirming the international recognition of the human right to environment. The United Nations’ General Assembly, as well as many of the United Nations’ organs, programmes, funds and specialised agencies, have aggressively promoted and recognised the human right to environment in all or some of its manifestations, as have regional organisations around the world, including those in Africa, the Americas, Asia, the Middle East, the South Pacific and Europe. These sources of modern international law are representative of all geographical regions of the world, and a wide diversity of cultural, philosophical, legal and political traditions.36 Since 1995 we have also seen a dramatic increase in legal literature produced by numerous environmental and human rights scholars recognising the existence of the human right to environment under international law. A  simple internet search for ‘human right to environment bibliography’ produces hundreds of such titles and authors. Burns H. Weston and David Bollier recently commented on the quality and volume of this legal literature while also listing an impressive sample of approximately sixty books, book chapters, articles and draft papers written during this period.37 Of course, many more examples exist as the debate regarding the human right to environment continues to inspire the research of new generations of international environmental law and human rights scholars around the globe. After considering this voluminous evidence, most of which was developed since 1995, Weston and Bollier concluded that the human right to environment ‘is today officially recognized juridically’ under modern international law.38 Moreover, after studying this issue for several years, UN Special Rapporteur John

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HRC, Report to the UN General Assembly on Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, John H. Knox, 19 July 2018, UN Doc. A/73/188, para. 36. Handl, in this volume, p. 137. The human right to environment can be best understood as containing a compendium of rights. Its substantive formulation contains both an autonomous and self-standing articulation, as well as one derived from other recognised human rights such as the right to life, health, etc. The right’s procedural formulation includes such concepts as the right to participate in the decision-making process, right to a remedy and access to courts, among others. See L. E. Rodríguez-Rivera, ‘Human Right to Environment in the 21st Century – A Case for its Recognition and Comments on the Systemic Barriers It Encounters’ (2018) 34 American University International Law Review, 143ff. (listing dozens of international, regional and local instruments and actions evincing international recognition of the human right to environment); HRC, Report on Human Rights Obligations Relating to Environment, paras. 28–36. See Weston and Bollier, Green Governance, p. 30 (at note 6). Ibid., p. 285.

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H. Knox concluded that ‘[t]here can be no doubt that the right to a healthy environment is a moral right, essential to the health, well-being and dignity of all human beings’.39 I agree with both of these statements. Although Knox recommends that the United Nations ‘legally recognise’ the human right to environment, I am of the position that the international community has already recognised the same through the above described modern sources of international law.

11.4 How Did the Right to Environment Develop and Why? As explained above, the human right to environment was not among those rights recognised in the International Bill of Rights. During the formative period of human rights (1945–66), the right to environment could have been accurately classified as a novelty or emerging right from both the epistemic and ontic perspectives, as these terms are defined in this book by colleague Mart Susi – ‘the process of knowledge development practice from the introduction of the idea of a new human rights claim’ (epistemic) – and its conceptualisation outside the recent codification of human rights in the 1948 Universal Declaration (ontic).40 From an epistemic perspective, the process of knowledge development of the emerging right to environment peaked during the late 1960s and early 1970s. In 1968, for instance, a constitutional amendment was proposed by United States’ Senator Gaylord Nelson providing that ‘[e]very person has the inalienable right to a decent environment’.41 That same year, the United Nations’ General Assembly recognised the consequent effects that a deteriorated environment has over the enjoyment of basic human rights, and highlighted the support that this concept had received from states, international organisations, non-governmental organisations and international experts.42 In 1969 the United States’ Congress and President Richard Nixon recognised in the groundbreaking National Environmental Policy Act that ‘each person should enjoy a healthful environment’.43 The 1972 Stockholm Declaration served as the instrument in which the international community recognised the crystallisation, from an epistemic perspective, of the new human right to environment. The Stockholm Declaration’s impact was dramatic. Since its adoption, well over one hundred states have included the right to environment in their constitutions and more have implemented it through legislation;44 international relations evolved to include the environment as an area of concern within the international community’s agenda; countless international treaties, beginning with the Convention on the Elimination of All Forms of Discrimination against Women (1979)45 and the United Nations Convention on the Law of the Seas (1982),46 implicitly recognised the human right to environment and incorporated environmental preservation, conservation and protection into their legal regimes; and most regional 39 40 41

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See HRC, Report on Human Rights Obligations Relating to Environment, para. 54. M. Susi, in this volume, p. 21. HRJ Res. 1321, 90th Cong., 2d Sess. (1968); see C. L. Gallagher, ‘The Movement to Create an Environmental Bill of Rights: From Earth Day, 1970 to the Present’ (1997) 9 Fordham Environmental Law Review 107 at 120. UNGA, Resolution 2398 on Problems of the Human Environment, 3 December 1968, UN Doc. A/7291. National Environmental Policy Act of 1969, Pub.L. 91–190, 83 Stat. 852, codified at 42 USC ss. 4321 et seq. See OHCHR and UNEP, Joint Report: Human Rights and the Environment, Background Document for Joint Side Event: Human Rights at the Center of Sustainable Development – Honoring Rio Principle 1, UN Conference on Sustainable Development, Rio de Janeiro, 19 June 2012, p. 19; see also Earthjustice, Environmental Rights Report, 21 June 2007 (includes text for 118 of these constitutional clauses, one more than its previous 2005 Report). Convention on the Elimination of All Forms of Discrimination against Women, New York, 18 December 1979, in force 3 September 1981, 1249 UNTS 1, Art. 14(2)(h). United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, in force 16 November 1994, 1833 UNTS 3.

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human rights conventions explicitly recognised the human right to environment, including the above-mentioned ASEAN Human Rights Declaration, Arab Charter of Human Rights, Aarhus Convention, Protocol of San Salvador to the American Convention on Human Rights and African Charter on Human and Peoples’ Rights. This voluminous evidence also includes actions resulting in thousands of: resolutions, declarations, reports and studies from United Nations organs, programs, funds and specialized agencies; judicial decisions from international, regional and state tribunals; writings and conference proceedings from academic experts; constitutional provisions, laws, practices, declarations and other forms of expression from an overwhelming number of states; and, demands and claims raised by civic groups, non-governmental organizations, communities and individuals.47

From an ontic perspective, the period prior to the 1972 Stockholm Declaration can best be described as the right to environment’s novelty phase, a period in which it was perceived as a moral claim outside the realm of traditional international law. In turn, the 1972 Stockholm Declaration represents, from an ontic perspective, the beginning of the right to environment’s emerging phase. From a traditionalist approach to international law, the right to environment is still an emerging right awaiting formal evidence of state acceptance before reaching new right status. However, as previously discussed, the right to environment has already been universally recognised as a new human right through numerous modern international law sources adopted and implemented by states and the international community in general. Thus, we can safely conclude that the substantive right to environment is currently a new human right from both epistemic and ontic perspectives, and constitutes an essential component that holds together the fabric of universal human rights. Although Handl briefly addresses the ‘rights of nature’ in Chapter 10 of this volume, I do not address it here due to space limitations. Suffice it to say, I do not share his conceptual problems with said right. As a matter of development and international recognition, I  would describe the rights of nature as an emerging human right from an epistemic perspective and as a novelty human right from an ontic perspective. In the twenty-first century, the rights of nature has advanced in its development as states and societies have gained broader environmental knowledge and have developed deeper environmental sensibilities.

11.5 Final Comments Today, individuals and communities all over the world demand that states respect, protect and enforce their human right to environment. Recently, over twenty-five groups and organisations from Puerto Rico’s civil society brought a complaint before the Inter-American Commission on Human Rights against the United States and Puerto Rico governments calling for precisely such protection.48 The United States’ representative before this Commission testified during a hearing held on 7 December 2017 that although he did not have information concerning the environmental issues raised by the complainants, those were ‘obviously important issues’ he would address with the Puerto Rico government.49 Shortly thereafter, the Inter-American Commission announced it was deeply concerned about the obstacles experienced by Puerto 47 48 49

See Rodríguez-Rivera, ‘Human Right to Environment in the 21st Century’. See IAComHR, Annual Report 2017, Chapter IV: Human Rights Developments in the Region, para. 212. See IAComHR, Economic, Social, Cultural and Environmental Rights in Puerto Rico, 166th Session, 7 December 2017 available at www.oas.org/es/cidh/audiencias/TopicsList.aspx?Lang=en&Topic=27 (at 1:02:30).

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Rico’s civil society regarding ‘the exercise of civil, political, economic, social, cultural, and environmental rights’.50 Separately, Philip Alston, Special Rapporteur on Extreme Poverty and Human Rights of the Office of the High Commissioner on Human Rights, issued a report to the United Nations’ Human Rights Council informing on his mission to the United States and Puerto Rico. The report highlights, among other things, the severe negative health impacts suffered by poor communities in Puerto Rico due to the poor handling of coal ash on the island.51 Similar scenarios are playing out every day all around the world – that is, the right to environment is vigorously claimed, protected and enforced. In sum, the human right to environment in all three of its formulations (autonomous, derivative and procedural) exists, and is universally recognised and implemented as a new human right.

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IAComHR, ‘IACHR Expresses Deep Concern about the Human Rights Situation in Puerto Rico’, Press Release No. 004/18, 18 January 2018 (emphasis added). See HRC, Report of the Special Rapporteur on Extreme Poverty and Human Rights on His Mission to the United States of America, Philip Alston, 4 May 2018, UN Doc. A/HRC/38/33/Add.1, para. 68.

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Status Rights

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12 The Inter-American Convention on Protecting the Human Rights of Older Persons Luis Humberto Toro Utillano*

12.1 Origin of the Mandate 12.1.1 The Mandates from the Summit of the Americas The original motivation to work on the rights of older persons came to the inter-American system from the Summit of Heads of State and Governments of the Americas, held in Port of Spain, Trinidad and Tobago, on 19 April 2009. Summits are encounters of heads of state and governments of the hemisphere comprised of independent countries in the Americas, including Cuba since 2015, with participation by international organisations and civil society, and are held to ‘define the agenda of the inter-American system, including issues regarding multilateral cooperation’.1 Summits adopt declarations and plans of action with specific mandates for governments and regional organisations. In Trinidad and Tobago, heads of state and governments adopted the Declaration of Commitment of Port of Spain,2 a document that did not obtain consensus on issues regarding the integration of Cuba and the global financial crisis.3 However, it was agreed to conduct ‘a review of the feasibility of preparing an inter-American convention on the rights of older persons’4 through consultations.5 This language differs from the original proposal, submitted by the delegation of Argentina, suggesting the elaboration of ‘an international convention’ and a mechanism to assert such rights.6

*

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The author is Senior Legal Officer at the Department of International Law of the Secretariat for Legal Affairs of the General Secretariat of the Organization of American States (OAS). Opinions and comments stated in this text do not reflect those of the OAS or the General Secretariat but belong strictly to the author, who wishes to thank Naomi Glassman for her research and Julia Manglano for her editorial assistance. Secretariat of the Summits of the Americas, Introduction to the Summit of the Americas Process, available at www . summit-americas.org/summit_process.html. The Heads of State and Government at the Fifth Summit of the Americas, Declaration of Commitment of Port of Spain, 19 April 2009, para. 97, OEA/Ser. E, CA-V/DEC.1/09 (hereinafter Declaration of Port of Spain). Statement by the Chairman of the Fifth Summit of the Americas, the Honourable Patrick Manning, Prime Minister of the Republic of Trinidad and Tobago, 19 April 2009, OAS Doc. Ser. E C-V/DP-1/09, pp. 2 and 5. Fifth Summit, Declaration of Port of Spain, para. 41. Summit Implementation Review Group (SIRG), Results of Negotiations, March 2009, OAS Doc. GRIC/O.4/doc.4/ 09, pp. 30–31. Summit Implementation Review Group (SIRG), Working Document: Proposal by Argentina to Paragraph ‘d’ of the Draft Declaration, 23 February 2009 (unpublished).

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12.1.2 The Organization of American States (OAS) Takes Control of the Mandate In June of 2009, less than two months after the Summit of the Americas, the OAS General Assembly echoed the Declaration of Commitment of Port of Spain and took ownership of the mandate. The resolution entitled ‘Human Rights of Older Persons’, adopted by the OAS in June 2009 and reiterated in 2010, demanded that member states examine ‘the feasibility of preparing an inter-American convention on the rights of older persons’, which basically reproduced paragraph 42 of the Declaration of Port of Spain. Furthermore, it proposed a generic mandate aiming at evaluating the situation and adopting measures to protect older persons due to concerns about the lack of knowledge regarding institutions and mechanisms related to problems confronted by older persons and the need for the ‘creation of international instruments’ for their protection.7 To that end, the Permanent Council convened a Special Meeting on human rights and older persons in 2010 that focused on national regulatory frameworks and policies on ageing in the hemisphere. Experts and government officials pointed out some concerns related to the increasing indices of human population growth among the elderly:8 • by 2050, life expectancy is supposed to rise to 80 years and the number of people over 60 years of age is expected to increase by more than 50 per cent in the Americas (from 106 to 310 million); • the vulnerability of elder women who retire earlier with lower salaries and living longer than men; and • a higher index of poverty (50 per cent lack resources to satisfy their needs). Likewise, experts described and condemned the infringement of older persons’ rights, depicting this group as victims of discrimination, violence and mistreatment.9 The Special Meeting concluded that older persons in the Americas lacked effective support, and it highlighted the need for the elaboration of a binding instrument to better protect their human rights.10 In 2011, the OAS established the Working Group on protecting the human rights of older persons (hereinafter the Working Group) and put it in charge of a feasibility study that will provide a diagnosis of the situation of older persons.11

12.2 Legal Framework When the OAS General Assembly decided to elaborate a binding document to protect the human rights of the elderly in the Americas, neither the inter-American System nor the universal system had a binding legal instrument dedicated exclusively to the protection of older

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OAS GA, Resolution 2455 on Human Rights and Older Persons, 4 June 2009, OAS Doc. AG/RES.2455 (XXXIX-O/ 09), operative clause 1 and OAS GA, Resolution 2562 on Human Rights and Older Persons, 8 June 2010, OAS Doc. AG/RES.2562 (XL-O/10), operative clause 3. OAS Permanent Council, Working Group on Protecting the Human Rights of Older Persons (Working Group), Summary of the Conclusions of the Special Meeting of the Permanent Council of October 28, 2010, 25 October 2011, OAS Doc. CAJP/GT/DHPM-6/11 rev.1, p. 2. OAS Permanent Council, Minutes from the Special Meeting Held on October 28, 2010, OAS Doc. CP/ACTA 1776/ 10, at pp. 6, 12, 16 and 17. Working Group, Summary of Conclusions, OAS Doc. CAJP/GT/DHPM-6/11 rev.1, pp. 4–5. Working Group, Report on the Situation of Older Persons in the Hemisphere and the Effectiveness of Binding Universal and Regional Human Rights Instruments with Regard to Protection of the Human Rights of Older Persons, 2 December 2011, OAS Doc. CAJP/GT/DHPM-14/11 rev.1, p. 1. Downloaded

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persons or addressing issues of ageing in the field of human rights. Internationally, the rights of the elderly were mainly recognised by soft law.12 12.2.1 United Nations Initiatives The UN organised two world assemblies on ageing that provided proposals on policies and programmes. The first took place in Vienna in 1982; it formulated sixty-two recommendations in the areas of health, housing, social welfare, employment and education, among others. It adopted the Vienna International Plan of Action that encourages technical cooperation, and proposes actions relating to research, data collection, training and education.13 The second conference took place in Madrid in 2002. It approved two main documents: a political declaration and the Madrid International Plan of Action on Ageing.14 A  total of 100 recommendations were reached, giving priority to three main issues: ‘older persons and development; advancing health and well-being into old age; and, enabling supportive environments’.15 Between those two conferences, the General Assembly of the UN had adopted its Principles for Older Persons in 1991,16 encompassing five principles to be incorporated into national programmes: independence, participation, care, self-fulfilment and dignity.17 Similarly, other bodies within the UN have raised awareness about the situation of the elderly. The Committee on the Elimination of Discrimination against Women formulated General Recommendation No. 24 in 1999, seeking to ensure access for older women to health services focusing on ‘the needs of women with disabilities and respect for their human rights and dignity’.18 In 1995, the Committee on Economic, Social and Cultural Rights released General Comment No. 6, calling for renewed efforts in social and economic policies, particularly in light of the exodus from rural areas by younger people, and raising awareness of the steady rate of ageing around the world.19 In 2010, the UN established an Open-ended Group on Ageing with some similar objectives to the ones created by the OAS in 2011.20 12.2.2 Regional Conferences In the Americas, policies proposed by the UN have been implemented through the Regional Intergovernmental Conferences on Ageing for Latin America and the Caribbean, organised by the Economic Commission for Latin America and the Caribbean (ECLAC). The First Regional 12

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In 2000, The Hague Conference on Private International Law adopted a Convention on the International Protection of Adults, The Hague, 13 January 2000, in force 1 January 2009, 2600 UNTS 3 focusing on protective measures and power of representation for adults, understood as persons over 18 years old, and their property. It has been in force since 2008 but has not been ratified by any OAS member state. World Assembly on Ageing (26 July–6 August 1982), Vienna International Plan of Action on Ageing, available at www .un.org/en/events/elderabuse/pdf/vipaa.pdf; endorsed by UNGA, Resolution 37/51 on Question of Aging, 3 December 1982, UN Doc. A/RES/37/51. Second World Assembly on Ageing (8 April–12 April 2002), Political Declaration and Madrid International Plan on Ageing; see UN, Report of the Second World Assembly on Ageing, 2002, UN Doc. A/CONF.197/9, p. 1. Second World Assembly on Ageing, Political Declaration and Madrid International Plan, Art. 1. UNGA, Resolution 46/91 on Implementation of the International Plan of Action on Ageing and Related Activities, 16 December 1991, UN Doc. A/RES/46/91. Ibid., see the Annex on the United Nations Principles for Older Persons. CEDAW Committee, General Recommendation No. 24: Art. 12 of the Convention (Women and Health), 1999, UN Doc. A/54/38/Rev.1, chap. I, para. 25. CESCR, General Comment No. 6: The Economic, Cultural and Social Rights of Older Persons, 8 December 1995, UN Doc. E/1996/22. UNGA, Resolution 65/182 on Follow-up to the Second World Assembly on Ageing, 21 December 2010, UN Doc. A/RES/182.

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Conference took place in Chile in 2003. It suggested four main goals in response to the Plan of Action of Madrid: protection of the human rights of older persons; access to comprehensive health care services; a supportive environment; and a strategy to achieve these goals and review their progress.21 The Second Regional Conference was held in Brasilia in 2007. It approved a declaration that underscored the responsibility of governments regarding social and health care services. It contained an array of proposals about the protection and promotion of human rights of older persons, changes in demographics, caring for the elderly, and plans for cooperation and research. It defined the role of states, the private sector, academia and international agencies, and it pledged to promote the drafting of a convention within the UN.22 At the Third Regional Conference, held in Costa Rica in 2012, governments signed the San José Charter on the Rights of Older Persons in Latin America and the Caribbean, a commitment which recognised the value of ageing with dignity; promoted actions intended to protect human rights and improve social protection, labour law and education; and confronted exclusions. Similarly, the Conference expressed support for the efforts of the Open-ended Working Group on Ageing at the UN as well as the OAS’s draft proposal.23 12.2.3 Existing Treaty Rights of Older Persons within the Inter-American System Some of the norms that guide the respect of human rights and fundamental freedoms in the inter-American system address older persons’ rights within a particular context. 12.2.3.1 The Charter of the Organization of American States The Charter of the OAS24 was adopted in June 1948 and entered into force in 1951. It has been ratified by all OAS member states as an essential condition of membership of the Organization. It is the founding treaty that sets out the OAS’s objectives, composition and operation. As stated in its Articles 3 and 34, the Charter advocates for the advancement of the people in the Americas, their integration in decision-making related to their development and the respect of their fundamental rights. However, there is no provision encompassing the rights of older persons or ageing in particular. 12.2.3.2 The American Declaration of the Rights and Duties of Man The American Declaration, adopted in April 1948,25 acknowledges the progressive nature of the international protection of human rights and identifies those rights deemed essential to human beings and the duties of states with regard to the respect of freedoms, such as the right

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ECLAC, Regional Intergovernmental Conference on Ageing (19–21 November 2003):  Regional Strategy for the Implementation in Latin America and the Caribbean of the Madrid International Plan of Action on Ageing, available at www.cepal.org/celade/noticias/paginas/1/13611/FINAL-DSC-1-Ingles.pdf. ECLAC, Second Regional Intergovernmental Conference on Ageing in Latin America and the Caribbean (4– 6 December 2007), Report of the Conference, 25 April 2008, UN Doc. LC/L.2891 (CRE.2/5), Annex 1 (Brasilia Declaration). ECLAC, Third Regional Intergovernmental Conference on Ageing in Latin America and the Caribbean (8–11 May 2012), Report of the Conference, 3 October 2012, UN Doc. LC/L.3526, Annex 1 (San José Charter). Charter of the Organization of American States, Bogotá, 30 April 1948, in force 13 December 1951, 119 UNTS 3. American Declaration of the Rights and Duties of Man, OAS Res. XXX, adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the InterAmerican System, OEA/Ser.L.V/II.82 doc.6 rev.1.

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to life, liberty and personal security, education, social security, due process of law and equality before the law. Article XVI of the Declaration specifically addresses older persons’ rights to social security. The American Declaration, adopted originally as a resolution, is currently a source of obligations for all OAS member states in matters relating to human rights, as determined by the Inter-American Court of Human Rights, considering that the ratification of the OAS Charter creates obligations in the field of human rights for all.26 12.2.3.3 The American Convention on Human Rights The American Convention, which was adopted in November of 1969 and entered into force in 1978, establishes obligations for states and rights and duties for individuals.27 It recognises civil, political, economic, social and cultural rights; it asserts rules in cases of suspension of guarantees; and it regulates the relevant bodies in charge of the promotion and protection of human rights: the Inter-American Commission on Human Rights (hereinafter Inter-American Commission or the Commission) and the Inter-American Court of Human Rights (hereinafter Inter-American Court or the Court). Currently, not all member states of the Organization are parties to the American Convention: twenty-three states have ratified it and only twenty have accepted the jurisdiction of the Court.28 In concrete terms, the rights of the elderly are addressed in one provision that forbids capital punishment for people who commit a crime when they are over 70 years of age (Art. 4). Additionally, there is a prohibition of discrimination based on ‘social condition’, which could include age as a protected right, based on a broad interpretation and on ‘the rule most favorable to the human being’, as proposed by the Inter-American Court.29 12.2.3.4 The Additional Protocol to the American Convention on Human Rights Regarding Economic, Social and Cultural Rights (Protocol of San Salvador) The Protocol of San Salvador, ratified by sixteen member states, aims at the realisation of the rights implicit in the economic, social, educational, scientific and cultural standards recognised within international instruments.30 Article 17 of the Protocol requires states to progressively provide ‘special protection in old age’, specifically with regard to older persons’ facilities, food and medical care. It calls for the implementation of programmes to engage in productive activities ‘suited with their abilities and consistent with their vocations or desires’. The provision also describes ways to enhance their well-being within institutions and families.

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IACtHR, Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89 of 14 July 1989, Ser. A, No. 10. American Convention on Human Rights, San José, 22 November 1969, in force 18 July 1978, 1144 UNTS 144. For signatories and ratifications see www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights_ sign.htm. IACtHR, Atala Riffo and Daughters v. Chile (Merits, Reparations, and Costs), 24 February 2012, Ser. C, No. 239, paras. 84–85, finding that sexual orientation is included under social condition; IACtHR, Norín Catrimán et  al. v.  Chile (Merits, Reparations, and Costs), 29 May 2014, Ser. C, No. 279, para. 202, finding that ethnic origin is included under social condition. Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), San Salvador, 17 November 1988, in force 16 November 1999, (1988) OAS Treaty Series No. 69.

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12.2.3.5 The Inter-American Convention against All Forms of Discrimination and Intolerance (Convention against Discrimination) Adopted in 2013 but not yet entered into force, the Convention against Discrimination acknowledges the inherent dignity and equality between human beings and seeks to ‘prevent, eliminate, prohibit and punish … all acts and manifestations of discrimination and intolerance’ in public and private life (Art. 4).31 Notably, this Convention includes age as one of an array of prohibited motives that could lead to discrimination, in accordance with Articles 1 and 2. 12.2.3.6 Jurisprudence within the Inter-American Human Rights System While the Inter-American Court and Commission have not explicitly addressed the rights of older persons in their jurisprudence to date, they have repeatedly recognised the situation of the elderly in different circumstances. The Inter-American Court has recognised the elderly as being among the vulnerable members of society requiring specific attention and care.32 In the El Mozote Massacre case against El Salvador, the Inter-American Court ordered the establishment of a family health community centre to provide assistance to the next of kin of the victims of the massacre, including the elderly, giving special attention to their health needs.33 The InterAmerican Commission has similarly noted the vulnerable situation of older persons in a report on ‘Indigenous Peoples, Afro-Descendent Communities and Natural Resources’.34 There are also cases about the right to a pension, which is considered to be protected under the American Declaration.35 In one case, the Court cited the Commission’s views addressing the differential effect that adjustments in pensions have on the elderly and their difficulty in finding another job.36 The Court, however, did not explicitly frame the right to social security as a right of the elderly.37 The right of older persons to prompt judicial decisions has also been recognised by both the Commission and the Court. In Furlan v.  Argentina, the Court found that the determination of a reasonable time for judicial proceedings must take into account the vulnerability of the petitioner, including disability or age, when prioritising and to avoid delays.38 In 2001, the Commission accepted a petition involving social security payments to retirees and alleged violations to the American Convention on the ground of judicial delays, linked to ‘effective recourse and a hearing within a reasonable time’.39

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Inter-American Convention Against All Forms of Discrimination and Intolerance, La Antigua, 6 June 2013, not yet in force, OAS Treaty Reference A-69. IACtHR, Yakye Axa Indigenous Community v. Paraguay (Merits, Reparations, and Costs), 17 June 2005, Ser. C, No. 125, para. 175, finding that ‘the state must provide care for the elderly with chronic diseases and in terminal stages’. IACtHR, Massacres of El Mozote and Nearby Places v. El Salvador (Merits, Reparations, and Costs), 25 October 2012, Ser. C, No. 252, paras. 337–339, 349. IAComHR, Indigenous Peoples, Afro-Descendent Communities and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities, 31 December 2015, OAE/Ser.L/V/II., OAS Doc. 47/15, paras. 8, 18. IACtHR, Acevedo Buendía v.  Peru (Preliminary Objections, Merits, Reparations, and Costs), 1 July 2009, Ser. C., No. 198. Ibid., para. 119; IACtHR, “Five Pensioners” v. Peru (Merits, Reparations, and Costs), 28 February 2003, Ser. C, No. 98, paras. 18 and 62. IAComHR, Tomas Eduardo Cirio v. Uruguay (Merits), 27 October 2006, Ser. L, No. 124/06, para. 134.1. IACtHR, Furlan & Family v. Argentina (Preliminary Objections, Merits, Reparations, and Costs), 31 August 2012, Ser. C, No. 246, paras. 134, 194–196, citing the European Court of Human Rights decisions Codarcea v. Romania (Appl. no. 31675/04), judgment, 2 June 2009 and Jablonská v. Poland (Appl. no. 60225/00), judgment, 9 May 2004. IAComHR, Amilcar Menendez et al. v. Argentina, 19 January 2011, Case 11.670, No. 03/01: a friendly settlement was reached in 2011.

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12.2.4 At the Domestic Level The Working Group observed a lack of uniformity in domestic legislation within member states with regard to older persons and ageing. It noted that most OAS member states had developed legislation and policies to protect older people in the field of health and social security, while a few also supported comprehensive perspectives embracing cultural, political and social rights.40

12.3 The Assessment On 2 December 2011, the Working Group concluded that there was a need to ‘prepare a draft inter-American convention for the advancement and protection of the rights of older persons’,41 a decision substantiated by two major factors: the necessity of addressing specific needs of older people and the inadequate legal framework for ensuring effective protection at the regional and global levels,42 despite older persons ‘being the fastest growing population’ as observed at the UN by the Chung Report in 2009.43 Among the remedies proposed to confront specific needs of older people, the discourse was centred on them, calling for awareness-raising initiatives to change attitudes and eliminate age discrimination, among other plans of action.44 The Pan American Health Organization (PAHO)45 drew attention to the deficiencies in long-term care and suggested promoting ‘comprehensive health services that truly respond to the needs of older people’.46 Furthermore, civil society representatives pointed out violations of older persons’ rights relating to discrimination and violence and called for initiatives to influence attitudes regarding ageing,47 while some member states expressed concerns at the invisibility of older persons.48 However, the criticism of the existing legal framework for older persons, which was considered to be fragmented, insufficient and unable to guide regulatory actions and public policies, gave room for a rhetoric of obligations: • Human rights norms were considered insufficient because their limited reach and lack of teeth restricted effective protection of older persons’ rights.49 HelpAge criticised the silence within monitoring human rights treaties with respect to older persons’ rights.50 Some scholars demonstrated that the perception of aspirational aspects of social, economic and political rights had prevented their enforcement in the short term while, in 40 41 42 43

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Working Group, Summary of Conclusion, OAS Doc. CAJP/GT/DHPM-6/11 rev.1, p. 4. Working Group, Situation of Older Persons, OAS Doc. CAJP/GT/DHPM-14/11 rev.1, pp. 8–9. Ibid., pp. 3 and 7. UNHRC, Working Paper Prepared by Ms. Chinsung Chung, Member of the Human Rights Council Advisory Committee: The Necessity of a Human Rights Approach and Effective United Nations Mechanism for the Human Rights of the Older Persons (Chung Report), 4 December 2009, UN Doc. A/HRC/AC/4/CRP.1, paras. 48, 51 and 58. HelpAge International, ‘Ageing and Development’, News and Analysis of Issues Affecting the Lives of Older People, September 2009, p. 7, available at www.helpage.org/silo/files/ageing-and-development-26.pdf. A specialised agency within the Inter-American system since 1902 that serves as the Regional Office for the Americas of the World Health Organization, having as its main goals to improve and protect people’s health: see www.paho .org/hq/index.php?lang=en. Working Group, Presentation by Javier Vázquez (PAHO), 28 March 2012, OAS Doc. CAJP/GT/DHPM/INF.7/12, pp. 6–7. Working Group, Summary of Conclusion, OAS Doc. CAJP/GT/DHPM-6/11 rev.1, pp.  2–3. Representatives of HelpAge, the Organization of Mutual Agencies of the Americas and the Permanent Assembly for Human Rights condemned the lack of adequate protection in the field of labour, social security and human rights. OAS Permanent Council, Minutes from Special Meeting, OAS Doc. CP/ACTA 1776/10: Argentina, Brazil and El Salvador. Working Group, Summary of Conclusions, OAS Doc. CAJP/GT/DHPM-6/11 rev.1, p. 6. Working Group, Situation of Older Persons, OAS Doc. CAJP/GT/DHPM-14/11 rev.1, p. 6.

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practice, claims involving civil and political rights have been restricted to social security benefits in adjudicatory instances.51 • Policies in place from regional conferences were criticised because their non-compulsory status did not encourage their integration into national norms.52 ECLAC53 found that the broad framework of the UN Principles for Older Persons was not able to support areas where older people are more vulnerable to violations of their rights.54 • National legislation supporting public policies were considered inadequate because of their ‘welfare-oriented approach’.55 ECLAC observed that policies on gender equality lacked specificity with respect to age.56 Finally, appeals for a new instrument centred on the specificity of the category, united by common characteristics that strengthened a rights-based discourse: • Some pleaded for the adoption of norms to protect older persons in specific situations that may render them vulnerable involving their quality of life, well-being and care,57 therefore shifting from a pure public policy focus to a human rights conception. • Others requested that norms be updated to address relevant changes having an effect on the elderly, such as demographic growth and inequality.58 An additional argument, more political in nature, was used at the UN, highlighting the need for a convention with ‘tailored instruments’ granted to other vulnerable groups such as ‘women, children, and the disabled’.59 The December 2011 conclusion was a key decision because it legitimised pursuing the negotiation of a draft convention for older persons. In fact, that precise moment marks the crystallisation of a norm destined to protect them (emergency period) within the inter-American system, given that the majority of member states recognised the need for a specific international instrument. Therefore, the Chairperson of the Working Group was able to embark on the process of elaborating a formal proposal, a decision that would be strengthened six months later when the General Assembly gave the Working Group the responsibility of ‘conducting the process of formal negotiation of the draft inter-American convention on the human rights of older persons’, extending its mandate.60 The assessment also acknowledged that the instrument to be drafted should be ‘approached as a human rights issue’ rather than one of public policy (although such policies were incorporated in it).61 This perspective is not new, having been promoted by the First62 and Second63 Regional 51

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D. R. Pinzón and C. Martin, ‘The International Human Rights Status of Elderly Persons’ (2002–2003) 18 American University International Law Review 915 at 918–922 and 934. HRC, Chung Report, para. 59. A regional commission of the UN created in 1948 to contribute to the economic development of Latin America. It acts as the focal point in the region in issues regarding ageing: see www.cepal.org/en/about. Working Group, Summary of Conclusion, OAS Doc. CAJP/GT/DHPM-6/11 rev.1, p. 2. HRC, Chung Report, para. 46. Working Group, Situation of Older Persons, OAS Doc. CAJP/GT/DHPM-14/11 rev.1, p. 3. Ibid., pp. 6–7. Ibid., p. 5. HRC, Chung Report, para. 56. Pinzón and Martin, ‘The International Human Rights Status of Elderly Persons’, 1008. F. Mégret, ‘The Human Rights of Older Persons: A Growing Challenge’ (2011) 11 Human Rights Law Review 37 at 39. OAS GA, Resolution 2726 on Protecting the Human Rights of Older Persons, 4 June 2012, OAS Doc. AG/Res.2726 (XLII-O/12), preamble. Working Group, Situation of Older Persons, OAS Doc. CAJP/GT/DHPM-14/11 rev.1, p. 8. ECLAC, Regional Intergovernmental Conference on Ageing: Regional Strategy. ECLAC, Second Regional Intergovernmental Conference on Ageing: Report.

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Conference which encouraged such interpretation in domestic and regional norms. By then, ECLAC had expressed similar views, recognising older persons as ‘holders of rights rather than objects of charity’,64 while Argentina claimed that ‘ageing must be seen from a social perspective taking into account the person’s specific human factors, and not factors such as age, labor productivity, or disability’.65 Moreover, some countries requested that an enforcement mechanism with a monitoring system be integrated to the instrument.66

12.4 The Convention: Context, Challenges and Added Value 12.4.1 Context for the Success of the Adoption of a Binding Instrument The negotiation of the draft Convention under the leadership of the delegations of Argentina, Chile and Panama, with the technical support of the General Secretariat of the OAS, took a total of three years, from April 2012 to May 2015 and about fifteen to nineteen meetings per year, faster than any recent legal instrument drafted by the OAS.67 It was accomplished as a result of a combination of efforts from OAS member states and the support of international organisations, with some representation from civil society. Regionally, countries presented their experiences to the OAS that were acquired at the UN level. For instance, in 2012, El Salvador offered twenty recommendations issued at a UN sub-regional meeting of central authorities held in 2010.68 The support of international organisations such as PAHO and ECLAC, which participated in the process from the start, also had a critical influence on the process. The first draft of the Working Group was based on the ‘Guidelines for a Convention on the Rights of Older Persons/ Adults’ drafted in 2012 by both organisations with the participation of experts from twenty-one OAS member states.69 Likewise, Mercosur, through its Institute of Public Policies, which is composed of human rights authorities of each member state, played a significant role by submitting its views on the need for a convention and, during the drafting process, on particular issues. Non-governmental organisations, known at the OAS as civil society, also submitted observations,70 among them:  HelpAge International through its regional network,71 the Organization of Mutual Agencies of the Americas (ODEMA) and the Permanent Assembly for Human Rights (APDH). Civil society worked mostly alongside certain member states, sometimes submitting their views to the Working Group, a practice which differs from the active role played by indigenous representatives during the negotiation of the American Declaration on the rights of indigenous peoples.72 64

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D. M. Giménez, Género, previsión y ciudadanía social en América Latina (Santiago: Publicación de las Naciones Unidas, 2003), p. 14, my translation. Working Group, Argentina’s Position on the Rights of Older Persons, 1 November 2011, OAS Doc. CAJP/GT/DHPM8/11, p. 2. Ibid., p. 2. The adoption of the Conventions fighting discrimination and intolerance took more than nine years in both cases, while the American Declaration on the Rights of Indigenous Peoples took eighteen years. Working Group, Remarks by the Delegation of El Salvador, 1 March 2012, OAS Doc. CAJP/GT/DHPM-29/12, p. 3. Working Group, Guidelines for a Convention on the Rights of Older Persons/Adults, 24 January 2012, OAS Doc. CAJP/GT/DHPM-23/12, elaborated as a follow-up to the Brasilia Declaration. OAS GA, Resolution 1707 on The Organization of American States and Civil Society, 5 June 2000, OAS Doc. AG/ RES.1707 (XXX-O/00). Created in 1980, since 2007 it has coordinated a world campaign to adopt a Convention on the Rights of Older Persons: see www.helpageusa.org. Indigenous representatives from a majority of member states submitted proposals and took part at the Working Group meetings. L. H. Toro Utillano, ‘La Declaración Americana sobre los Derechos de los Pueblos Indígenas’ (2015) XLII Curso de Derecho Internacional 551 at 559–564.

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OAS decisions are based on consensus among its thirty-four active member states, rather than on established majorities. It is a frequent practice for member states opposing initiatives to submit declarations regarding all or certain parts of a proposal. There is also room for dissent, and when there is active opposition to a proposal, there is a clear system of voting that entails majority rule.73 Both the United States and Canada opposed the Convention in its entirety,74 a view consistent with their earlier opposition to the elaboration of a draft Convention.75 Other countries that introduced reservations expressed concerns regarding particular issues rather than a complete rejection of the Convention. Nicaragua insisted on respect for domestic norms, focusing particularly on possible conflicts created internally by the Convention.76 On the other hand, the government of Venezuela addressed complaints to the organs of the inter-American human rights system.77 Additionally, Jamaica and Paraguay’s78 contentions targeted incongruences with their respective constitutional norms. While Paraguay did not specify what these were, Jamaica addressed the debate around the expression ‘end of life’ enshrined in previous versions of Article 6, announcing in the title ‘a right to dignity until the end of life’ without further explanation but compelling states to allow terminally ill persons ‘to die with dignity’.79 This debate brought to the table important constitutional, scientific and religious considerations with some delegations fearing an interpretation granting a right to end someone’s life. However, the final version was significantly different considering that none of the underlining expressions were kept, and older persons were granted a ‘right to life’ and a ‘right to live with dignity in old age until the end of their life’. The respect of dignity in old age trumps the right to end life, considering that among the foundations of the Convention is the intent to foster an ‘active ageing process’ and a healthy life expectancy and quality of life.80 As part of these principles, the Convention commits states to provide comprehensive care, including palliative care and management of problems relating to the fear of death. Despite the previously mentioned contentions, the Convention has been in force since January 2017,81 having been ratified by Uruguay, Costa Rica, Bolivia, Chile, Argentina, El Salvador and Ecuador (as of August 2019). Nonetheless, this is still far from the minimum number of ratifications necessary to establish the follow-up mechanism, which requires ten states parties (Art. 33). This situation perpetuates the lack of universality of the inter-American system considering that human rights treaties have been ratified by subsets of states.

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See Arts. 54, 55, 57 and 59 of the OAS Charter, Bogota, 30 April 1948, in force 13 December 1951, 119 UNTS 3 and Arts. 64, 65, 84 and 85 of the General Assembly Rules of Procedure, 5 June 2000, OAS Doc. AG/Res.1737 (XXX-O/00). OAS GA, Resolution 2875 on Convención Interamericana sobre la Protección de los Derechos Humanos de Las Personas Mayores, 15 June 2015, OAS Doc. AG/RES.2875 (XLV-O/15), notes 1 and 2. OAS GA, Resolution 2726 on Protecting the Human Rights of Older Persons, 4 June 2012, OAS Doc. AG/Res.2726 (XLII-O/12), notes 1 and 2. OAS GA, Resolution 2875, note 4. OAS GA, Resolution 2875, note 5. OAS GA, Resolution 2875, notes 3 and 6. Art. 7 of the 2012 draft Convention; see Working Group, Activities in the Period 2011–2012, 3 May 2012, OAS Doc. CAJP/GT/DHPM-45/12, p. 60 (emphasis added). Inter-American Convention on Protecting the Human Rights of Older Persons, Washington DC, 15 June 2015, in force 11 January 2017, UNTS I-54318 (hereinafter Older Persons Convention or the Convention), Preamble, para. 13. See also the definition of active and healthy ageing. It must be noted that, by January 2016, the African Union had adopted the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa, Addis Ababa, 31 January 2016, not yet in force, available at www.au.int/en/treaties/protocol-african-charter-human-and-peoples%E2%80%99-rights-rights-older-persons.

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12.4.2 Challenges and Added Value of the Convention The Convention is divided into seven chapters and has one preamble. The rhetoric within the provisions of the Convention varies, some provisions imposing legal responsibilities on states parties that may hold them accountable in light of the enforcement mechanism, while others establish principles, standards and best practices aimed at guaranteeing equal enjoyment of rights. The language among general duties, described in Article 4, illustrates such a mixed rhetoric. Some duties are obligations undertaken by states, such as ‘measures to prevent, punish, and eradicate practices’. Other duties target rights of particular interest to older peoples, expecting states to promote public institutions, encourage civil society in the implementation process, gather information and data, adopt affirmative measures and even facilitate international cooperation. Most of the ‘obligations’ listed in Articles 5 to 31 feature a mixed rhetoric, usually granting older persons specific rights in the first part followed by obligations that should be assumed by states, with the exception of Article 29: ‘situations of risk and humanitarian emergencies’ that only addresses obligations. The Convention ascertains eighteen principles in Chapter II that apply throughout the entire text, conceding a variety of rights dealing with equality and non-discrimination, inclusion in society, dignity and independence, and effective judicial protection. In matters of ‘care of, assistance to, and integration into society’, the main responsibilities ought to be assumed by states while families and communities are expected to ‘participate’. The recognition of rights supported by particular measures designed to raise and promote awareness, integrating stakeholders other than governments, is regulated by Article 32. Accordingly, states should sensitise the public but also foster the understanding of ageing within academic and research circles, as well as recognising older persons’ experience and contributions. Moreover, several provisions compel states to develop training programmes or policies for a variety of stakeholders involved in the areas of justice, health, labour, education, transportation and technology, to name only a few, all aimed at granting or facilitating older persons’ access to appropriate services, benefits and protections within the above-mentioned areas, therefore advancing another group of rights of particular interest to older persons. Obligations and duties on states are often tempered by respect to domestic laws or existing obligations, which may facilitate implementation but not necessarily provide the highest level of protection.82 According to Article 1(3) on the Convention’s purpose and scope, the implementation of the Convention should be done in accordance with constitutional processes. This is a solution that represents a common denominator among OAS member states in order to facilitate and reach consensus, but may not allow the integration of the most advanced criteria. We do not consider this to be a justification for encroachment on the recognition of particular rights because of the general rule which prohibits limiting ‘rights or benefits recognized to older persons in international law’ (Art. 1(2), but it may be a source of distraction. In other cases, the OAS followed the tendency of encouraging economic, social and cultural rights to be attained ‘in a progressive manner, taking into account domestic law’, and in accordance with ‘available resources and commensurate with their level of development’, as

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stated in Article 4(d) of the Convention.83 Among this group, the Convention recognises the rights to health, social security, education, work and culture (Arts. 17–21). In addition, analysis reveals the existence of legal provisions aimed at protecting fundamental rights and freedoms interweaved with public policy clauses. Such is the case with provisions that call on states to develop plans and policies to fight discrimination, to foster healthy ageing or to implement health programmes (Arts. 5 and 19). The preamble encourages states to incorporate ageing in public policies and to allocate resources to implement the proposed measures. Some believe that the broad participation of governmental entities in the negotiation process at the OAS has had an influence on the integration of public policies because they know first-hand the challenges and difficulties faced by states. In this context, policies of such nature were introduced as a complement to norms and ought to be considered a solid tool for raising awareness at the national level.84 This is a good indication that it is not a mere ‘substitution of language from public policy’ that may dilute or denaturalise a claim articulated in a human rights framework.85 The Convention is built on existing international norms from the regional and global systems, borrowing rights-based terminology and, in several instances, advancing those principles, standards and mechanisms developed in the field of human rights in order to strengthen the protection of older persons. 12.4.2.1 Within the Inter-American System the Convention Borrows Various Provisions from Binding Instruments Relating to the Defence of Vulnerable Groups Adopted in the Twentieth Century The Convention identifies eighteen vulnerable groups to be protected, among them: women, persons with disabilities, persons of different sexual orientations and gender identities, migrants, people of African descent, indigenous people, the homeless, as well as people who belong to ethnic, racial, national, linguistic, religious and rural groups (Art. 5). Some provisions grant preferential treatment for older persons with regard to the enjoyment of certain rights, such as health, cultural goods, public transportation and access to justice (Arts. 19(a), 21(3), 26(f), 31). The Convention is innovative regarding its means of protection compared to other human rights instruments because it combines a cooperation mechanism and an enforcement system aimed at protecting rights violated by an action attributable to states. The cooperation mechanism aims at facilitating the implementation of a treaty through reciprocal evaluation, and comparison and analysis of domestic legislation, public policies and best practices in order to improve regulatory frameworks and strengthen institutions. It does not impose sanctions or establish categories among states, and its composition varies, frequently consisting of central authorities and members of civil society.86 Within the Convention, the mechanism is composed of two organs: a Committee of Experts that elaborates recommendations and a Conference of States Parties in charge of monitoring the progress of states and evaluating the recommendations of the Committee (Arts. 33 and 34). Petitions ‘containing reports or complaints of violations’ of the Convention may be submitted to the Inter-American Commission by nationals of OAS member states (Art. 36(1)).87 83

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Art. 36(2) of the Convention reiterates the progressive nature of economic, social and cultural rights in the case of petitions before the Commission. Interview with Sandra Huenchan, Specialist at ECLAC, November 2017. Mégret, ‘The Human Rights of Older Persons’, 63–65 (warning about the risks in shifting from policies to norms). On the Follow-Up Mechanisms within the OAS, see www.oas.org/en/about/mechanisms.asp. Rules of Procedure have been developed by the Commission; see IACtHR, Basic Documents Pertaining to Human Rights in the Inter-American System (San José, Costa Rica: Inter-American Court of Human Rights), 2012, p. 173.

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Additionally, Article 36(5) permits states that have not done so to accept the jurisdiction of the Inter-American Court ‘on all matters relating to the interpretation or application’ of the Convention. This clause is a novelty, only available within three regional instruments adopted in the twenty-first century; it is a source of concern given that it may create a dual regime and a disparity between countries that have accepted such jurisdiction with regard to all treaties and those that have done so vis-à-vis only one Convention. 12.4.2.2 The Convention Advances Developments at the Regional and Universal Level The Convention incorporates rights to be applied collectively, such as the right to community integration or a healthy environment (Arts. 8 and 25), whereas other compulsory provisions encompass rights that are more of a novelty within an international legally binding instrument, but may derive from previously established norms: • a right to intimacy that can be associated with privacy; • a right to recreation, leisure and sports88 that can be associated with the right to health; • a right to ‘independence and autonomy’ found in Articles 16 and 22 of the International Plan of Action on Ageing of Vienna (1982)89 and Article 7 of the Principles of the United Nations for Older Persons (1991);90 and • a ‘right to safety and a life free of violence of any kind’, encompassing a greater scope of application than the Convention of Belem do Para of 1994, which deals specifically with the protection of women. The Convention is innovative in matters regarding the right to privacy because it requests that states foster public policies on sexual health, intimacy and privacy of older persons. Sexual health has been defined by the World Health Organization (WHO) and PAHO as ‘the experience of the permanent process of achieving physical, psychological and socio-cultural wellbeing related to sexuality’.91 An added value of the Convention for issues affecting care and amenities for the elderly, originally addressed by the Vienna Plan of Action, is that it creates a right to a ‘comprehensible system of care’ that requires, in cases of long-term care services, an appropriate regulatory framework respectful of the autonomy and independence of patients (Arts. 6 and 12). Provisions of the Convention concerning legal capacity integrate detail-oriented requirements imposing ‘consent criteria’ as an inalienable right to decisions on health and medical intervention. This standard is not demanded for decisions involving property, finances, bank loans or mortgages, considering the important recognition of the principle of equality92 promoted by the Convention. It must be noted that appropriate and effective mechanisms to prevent abuse should be in place when older persons exercise their legal capacity, which would act as another layer of protection (Art. 30). 88

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Art. 30 of the UN Convention on the Rights of Persons with Disabilities, New York, 13 December 2006, in force 3 May 2008, 2515 UNTS 3 refers to a right to participate in ‘recreational, leisure and sporting activities’. Report of the World Assembly on Aging, Vienna International Plan of Action on Aging, Vienna, 26 July to 6 August 1982, UN Doc. A/CONF.113/31. Resolution 46/91 on Implementation of the International Plan of Action on Ageing and Related Activities, 16 December 1991, UN Doc. A/RES/46/91. A. Güezmes, Reforma del sector salud y derechos sexuales y reproductivos (Washington DC:  Organización Panamericana de la Salud, 2004), p. 29, my translation. Working Group, Observations from the Human Rights Public Policy Institute of MERCOSUR, 6 August 2013, OAS Doc. CAJP/GT/DHPM-95/13 rev.1, p. 4: ‘Beyond the medical sphere, the other issues should be considered as part of the right to independence and autonomy which presupposes the exercise of legal capacity on an equal basis.’

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The Convention is an instrument that incorporates current relevant issues to societies considering it strives to bridge the generational digital divide by promoting the use of and access to new information and communication technologies, such as the internet (Arts. 20 and 26). Moreover, the Convention is innovative because it proposes to define older persons as a specific group to be protected under two approaches, chronological ageing and the process of ageing, marking a new standard in a binding instrument. Under the chronological aspect, Article 2 identifies an older person as someone ‘aged 60 or older, except where legislation has determined a minimum age that is lesser or greater, provided that it is not over 65 years’ of age. This is a result of a political compromise based on existing domestic legislations.93 The Convention refers to ageing as ‘a gradual process that develops over the course of life and entails biological, physiological, psychosocial, and functional changes with varying consequences’ (Art. 2). Physiological changes linked to functional capacities and gradual decrease in bone density, muscle tone and strength, as well as attitudes and behaviour based on social and historical constructs, all serve as determinants that contribute to social age.94 Various scholars concur on the difficulties of defining old age due to its lack of neutrality, as a category built or shaped by social, economic and political factors.95 Frédéric Mégret suggests viewing it as a social category ‘constructed by a series of continuously evolving social phenomena and representation’.96 This approach helps us understand the experience of older persons, including some of the paradoxes when looking at how to identify them, since some of them will be vulnerable while others are powerful, and assists in the recognition of their grievances and needs.97 Neither the initiatives to protect the rights of older persons, nor the idea of elaborating a binding instrument, was a new concept. Since 2007 the Declaration of Brasilia had been calling for an international convention to protect the rights of older persons perceived as vulnerable. The novelty of the Convention was in taking action and actually consolidating norms, policies and mechanisms within a regional binding instrument in the field of human rights, negotiating it among independent countries at the OAS and preparing it for ratification. Conscious of the words of caution by Philip Alston98 as to the need for ‘quality control’ when proclaiming new rights, Mégret points out that the specificity approach is part of the fragmentation of human rights, which ‘suggest[s] subtle but often significant differences in which the rights of various groups should be treated’. In this context, he proposes a three-question test to defend a group-specific approach: (1) a definable population sharing common characteristics or experience, (2) the inability of existing human rights instruments to take into account the needs of such a population and (3) the distinctiveness of the rights being challenged.99 In line with such an approach and its provisions, the Convention demonstrates some novel aspects:

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For example, Peru defines an older person as someone over sixty years of age (Ley No. 30490, Art. 2), whereas Uruguay defines the cutoff age as sixty-five years of age (Ley No. 17.796). Some countries, such as Belize and the Dominican Republic, allow the collection of social security benefits at fifty-five years of age. S. Huenchuan and L. Rodríguez-Piñero, Envejecimiento y derechos humanos: situación y perspectivas de protección (Santiago de Chile: United Nations, 2010), p. 14. P. De Hert and E. Mantovani, ‘Specific Human Rights for Older Persons?’ (2011) 4 European Human Rights Law Review 398 at 418. Mégret, ‘The Human Rights of Older Persons’, 44–45. Ibid., 45–47 (the power/vulnerability paradox as a way to distinguish the elderly from others) and 63–65. P. Alston, ‘Conjuring Up New Human Rights:  A Proposal for Quality Control’ (1984) 78 American Journal of International Law 607. Ibid., 41.

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• It formally recognises older persons as a category in a legally binding instrument contributing to the full enjoyment and exercise of their rights and fostering active ageing (para. 13 of the preamble). • It acknowledges the necessity of a human-rights perspective to address matters of old age and ageing, embracing a broad and comprehensive approach (para. 7 of the preamble), a focus that expects the protection of older people’s rights by providing justice and dignity.100 • It consecrates specific and general obligations and duties vested in states and other stakeholders, but also defines and recognises a variety of rights of particular interest to older persons, some of them considered new in the context of an international treaty. • It grants major protection for older persons’ human rights in the region by filling the gap where norms are absent or where previous norms and policies have failed.

12.5 Conclusion Within the inter-American system, the proposal for language in a text specifically recognising older persons responds to initiatives launched in the twentieth century by the United Nations and closely followed by regional intergovernmental conferences on ageing in Latin America and the Caribbean. It was also influenced in the short term by a variety of stakeholders: globally, the UN Open-Ended Working Group on Ageing, the findings of the Chung report of 2009, the tireless efforts of HelpAge International and the work of scholars evaluating a group-specific human rights approach who were keen to promote the issue, whereas in the Americas international organisations such as PAHO, CEPAL and Mercosur were mainly invested in the pursuit of goals and plans of actions of cited conferences. It all came full circle when the leadership of some countries brought the issue to the Summit of the Americas and demonstrated a political will at the OAS to negotiate and adopt a Convention, based on a feasibility study showing the need for such a regional instrument. The proposed remedy was adopting a regional instrument aimed at promoting and protecting in a comprehensive dimension the human rights of a category of people sharing common experiences or characteristics, who until then had not been given effective protection by the norms and policies already in place. The OAS Convention integrates genuine rights-based terminology addressing the dignity, independence, autonomy, inclusion and integration of older persons, among a long list of possible rights. It contains obligations ‘to respect, to protect and to fulfill’101 determined by different stakeholders and not only governments, it includes a cooperation mechanism and it provides effective ways to redress claims through an enforcement procedure that implies the participation of regional human rights institutions. As a result of the consensus that must be obtained within an international organisation such as the OAS, the Convention presents some challenges and limitations, taking into consideration the different motivations and interests that influence governments when drafting, ratifying or implementing a treaty. One may always question an instrument establishing rights and freedoms that may not have the expected effects of protecting or advancing the rights of older persons where a remedy for some may not be of help for others.102 Clearly, human rights

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Ibid., 38. HRC, Chung Report, paras. 48 and 51. Mégret, ‘The Human Rights of Older Persons’, 65–66 (the language of ‘rights’ and ‘freedoms’ can at times mask potentially regressive agendas).

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are not a panacea; but I believe in the positive effect of the exercise itself that gives visibility to the experience of the elderly103 and acknowledges ageing from a human rights perspective, while recognising in a regional instrument a particular category of the population, entrusting older persons with specific rights and sensitising other actors to better understand ageing and the experience of older persons.

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Ibid., 65; HelpAge International, ‘Ageing and Development’, News and Analysis of Issues Affecting the Lives of Older People, September 2009, pp. 6–7 available at www.helpage.org/silo/files/ageing-and-development-26.pdf.

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13.1 Introduction Luis Humberto Toro Utillano, in his chapter on the protection of the rights of older persons, skilfully highlights the development of the Inter-American Convention on Protecting the Human Rights of Older Persons and the role it is expected to play. He has drawn attention to some very interesting aspects of and innovations in the Inter-American Convention and has placed the Convention in the context of the advances that have taken place on the international stage, especially in the UN framework. The aim of this comment is to build on Toro Utillano’s chapter and focus on some general issues in relation to the rights of older persons. The main aspects that will be addressed are the evolution in the language used in addressing the rights of older persons and the benefits and pitfalls of considering the rights of older persons as ‘new’ and distinct, drawing conclusions on the legal status and the novelty of these rights. As Toro Utillano notes,1 the number of older people is rapidly growing, yet adequate attention is not being paid to the different issues that they may face daily. Practice shows that violations of the elderly take place daily and often systematically.2 The lives of older persons can be negatively impacted by both limitations to their rights and freedoms and failure to cater for their specific needs. For example, in relation to the issue of elder abuse, the World Health Organization has stated that ‘ageing may trigger an additional risk of abuse due to the increased dependence on others, social isolation and frailty that accompany it’,3 that around 17 per cent of people over 60  years old have experienced some form of abuse in community settings during 2017 and that rates of elder abuse are high in institutions such as nursing homes and long-term care facilities.4 And it is only recently that age discrimination has started to be discussed. It is noteworthy that the elderly are the only large vulnerable group that does not have a specific human 1 2

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L. H. Toro Utillano, in this volume, pp. 168, 173ff. For more on ageism and other problems older people face, see B. Mikołajczyk, ‘International Law and Ageism’ (2015) 35 Polish Yearbook of International Law 83; M. S. McDougal, H. D. Lasswell and L. Chen, ‘Human Rights of the Aged: An Application of the General Norm of Nondiscrimination’ (1976) 28 University of Florida Law Review 639 (already drawing attention to this problem in the 1970s); L. Chen, ‘Aging: A New Human Rights Concern – A PolicyOriented Perspective’ (1987) 81 American Society of International Law Proceedings 169; J. M. Miller, ‘International Human Rights and the Elderly’ (2010) 11 Marquette Elder’s Advisor 343. World Health Organization, ‘A Global Response to Elderly Abuse and Neglect:  Building Primary Health Care Capacity to Deal with the Problem Worldwide: Main Report’, 2008, available at: http://apps.who.int/iris/bitstream/ handle/10665/43869/9789241563581_eng.pdf;jsessionid=B2321894721872E765A1BF8AECA0288F?sequence=1, vii. World Health Organization, ‘Elder abuse’, fact sheet, 8 June 2018, available at: www.who.int/news-room/fact-sheets/ detail/elder-abuse.

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rights instrument addressing their needs nor any specific approaches to deal with their concerns. Other groups, such as women, children, persons with disabilities and migrant workers, do have legal instruments that protect their rights. Despite the historic lack of attention to the rights of older persons, there is now a new push to focus on this issue. As Charlie Sabatino has highlighted, there is ‘a growing advocacy effort among both nongovernmental and governmental organizations … to bring about a convention … directly addressing the human rights of older persons’.5 The reasons for this will be looked at later in this comment. The increased focus on the issue is also reflected in the number of instruments (both political and legal) that have been adopted on the matter and the change in language included in them.

13.2 Evolution of the Language As language reflects values and priorities, it is revealing to look at the words that have been used in addressing the needs and concerns of older persons; part of the enquiry into the novelty of rights is looking at the novelty of language. Thus, the language used to discuss these issues needs to be studied. The first observation is the initial ‘lack of language’. The main universal international human rights instruments do not contain any elderly-specific provisions. The only articles that have a connection to older persons are Article 25(1) of the Universal Declaration of Human Rights (UDHR), which refers to ‘the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control’,6 and the reference in the International Covenant on Economic, Social and Cultural Rights (ICESCR) to a right to ‘social insurance’, which is understood to include pension rights.7 The international community started to address the situation of older persons in the 1980s. As Toro Utillano notes, the World Assembly on Ageing was held in 1982 and it adopted the Vienna International Plan of Action on Ageing.8 Although that document ‘solemnly affirmed … that the fundamental and inalienable rights enshrined in the Universal Declaration of Human Rights apply fully and undiminishedly to the ageing’, the sixty-two recommendations that the Plan included were not framed as rights of older persons, but instead as policy proposals aimed at states. For example, Recommendation 9 says that ‘[p]articipation of the aged in the development of health care and the functioning of health services should be encouraged’. The language used is very soft and indeterminate (it is unclear what level of participation is required and it is not worded as an obligation, as exemplified by the term ‘encouraged’). The next important instrument was the 1991 UN Principles for Older Persons, which mentions human rights twice in the Preamble and once in a provision about care and treatment.9 Yet the 5

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C. P. Sabatino, ‘International Human Rights of Older Persons: The Gray Wave’ (2012) 22 Experience 10 at 11. Other authors who advocate for a treaty focusing on the human rights of older persons include Sebastián J. Sánchez Rivera, ‘Worldwide Ageing:  Findings, Norms, and Aspirations’ (2010) 79 Revista Juridica UPR 237; Miller, ‘International Human Rights and the Elderly’; A. Komanovics, ‘Age Discrimination: A Normative Gap in International Human Rights Law’ (2013) 151 Studia Iuridica Auctoritate Universitatis Pecs 79; Mikołajczyk, ‘International Law and Ageism’. UNGA, Resolution 217 A(III) on Universal Declaration of Human Rights, 10 December 1948, UN Doc. A/RES/3/217 (III) (A) (emphasis added). International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, in force 3 January 1976, 993 UNTS 3, Art. 9. Report of the World Assembly on Ageing, Vienna International Plan of Action on Ageing, Vienna, 26 July to 6 August 1982, UN Doc. A/CONF.113/31. Adopted by UNGA, Resolution 46/91 on Implementation of the International Plan of Action on Ageing and related activities, 16 December 1991, UN Doc. A/RES/46/91, Principle 14, which states: ‘Older persons should be able to

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document merely ‘encourages’ governments to ‘incorporate’ these principles into their national programmes whenever possible. However, the language of the provisions themselves has become more concrete. For example, Principle 6 states that ‘[o]lder persons should be able to reside at home for as long as possible’.10 Still, ‘should’ is not the same as ‘must’ or ‘have a right to’. In 2002 the UN revisited the rights of the elderly at the Second World Conference on Ageing in Madrid, and reviewed the recommendations adopted in the Vienna Plan of Action. The Conference resulted in the International Plan of Action, which included an ‘Action’ to ‘[e]nsure the full enjoyment of all human rights and fundamental freedoms by promoting the implementation of human rights conventions and other human rights instruments, particularly in combating all forms of discrimination’.11 Yet again, the recommendations included in the document were not phrased as ‘rights’. The focus remained on policy and goals, although the language was more strict and implied state obligations. The Madrid Plan includes recommendations aimed at implementation and follow-up. At the national level, the plan places the primary responsibility with national governments. At the international level, the UN Department of Economic and Social Affairs is responsible for facilitating and promoting the plan, and the regional commissions are responsible for translating the plan into regional action plans. It is important to note, however, that the Madrid Plan did not call for the development of a specific instrument that would provide protection for the elderly. Considering that all the instruments dealing specifically with the rights of older persons have been soft law documents and framed mostly as policy, it is even more remarkable that the InterAmerican Convention was adopted on 15 June 2015 as a binding instrument, particularly in light of the types of rights and ‘rights language’ it contains. Although similar legal documents have not (yet) been developed on other continents, there have been developments in relation to explicit references to the rights of older persons. For example, Article 25 of the Charter of Fundamental Rights of the European Union 2000 ‘recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life’.12 Prior to that, Article 23 of the 1996 Revised European Social Charter set out a right to social protection for the elderly in very broad terms.13 And age has been explicitly included as one basis for discrimination in Article 19 of the Treaty on the Functioning of the European Union and Article 21 of the Charter of Fundamental Rights of the European Union.14 The above-mentioned examples are not exhaustive, but they exemplify the progression in the language – problems related to older people started off being addressed as a social issue but have transformed or branched off to also become a legal matter. There is now a clear rights-based approach to the elderly.

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enjoy human rights and fundamental freedoms when residing in any shelter, care or treatment facility, including full respect for their dignity, beliefs, needs and privacy and for the right to make decisions about their care and the quality of their lives.’ Emphasis added. Second World Assembly on Ageing, 2002, Political Declaration and Madrid International Plan of Action on Ageing, UN Doc. A/CONF.197/9, para. 21. In addition, in Art. 5 of the Political Declaration the states reaffirmed ‘the commitment to spare no effort … to promote and protect human rights and fundamental freedoms’. Charter of Fundamental Rights of the European Union, Nizza, 7 December 2000, in force 1 December 2009, OJ 2012 No. C 326/2, Art. 25. European Social Charter, Strasbourg, 3 May 1996, in force 1 July 1999, ETS No. 163. Art. 19 Charter of the Fundamental Rights of the European Union; Consolidated Version of the Treaty on the Functioning of the European Union, Lisbon, 13 December 2007 in force 1 December 2009, OJ 2008 No. C 115/47, Art. 21.

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13.3 The Rights of Older Persons as ‘New’ Rights The next issue to address is whether the rights of older persons are ‘new’ stand-alone human rights or whether it is merely an issue regarding the implementation of ‘old’ rights. Supporters of the former approach are often the most vocal advocates for a treaty that would address the human rights of older persons in a consistent and structured manner. To understand why this idea is becoming more popular, it is useful to query what the benefits of considering the rights of older persons as ‘new’ rights are. First, having a defined set of rights or a specific instrument to deal with the rights of older persons increases the visibility of that issue and might elicit more action from states. Mégret has noted that not providing specific recognition of the rights of older persons could signal that the issue is considered ‘less worthy of human rights attention than others’, whereas the opposite approach would ‘encourage proactive policies, dynamise existing efforts, and provide a crucial standard for future ones’.15 The Chung Report that Toro Utillano refers to repeatedly also noted that ‘the elderly population must be recognized as a distinct group requiring special attention and care’.16 The argument is that older persons are a disadvantaged group that requires heightened protection, and recognising that they have distinct rights is one way of achieving this (a parallel is often drawn with children, as that is the only other vulnerable group defined on the basis of age).17 Second, as Toro Utillano highlights in his chapter, there is a criticism that the existing legal frameworks for older persons are ‘fragmented, insufficient and unable to guide regulatory actions and public policies’.18 Existing rights which have a particular relevance to older persons are scattered in regional or functionally specialised instruments, leading to a lack of comprehensive and structured ways of dealing with the rights and needs of older persons. The potential impact of the relevant provisions is ‘seriously diluted by the lack of focus, depth, and consistency’.19 This has led to non-governmental organisations like the International Network for the Prevention of Elder Abuse to conclude that the current human rights framework is insufficient to protect the rights of older persons in a systematic and comprehensive manner.20 This, in turn, has led to a concerted advocacy effort to bring about a convention that would specifically focus on the rights of the elderly. Despite the protections that exist as a result of these international and other regional legal instruments, the elderly still remain a vulnerable population whose rights are frequently not enforced and are even denied. Country reports to human rights treaty bodies provide some evidence that the current instruments do not provide sufficient protection, as there is a distinct lack of references to the situation and concerns of older persons included in them. Thus, despite the fact that there are already rights which can help to ensure that older persons can live a life of dignity, there may be a need for explicit rights. If there is no explicit right, the right is left

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F. Mégret, ‘The Human Rights of Older Persons: A Growing Challenge’ (2011) 11 Human Rights Law Review 37 at 64. Human Rights Committee (HRC), Working Paper Prepared by Chinsung Chung, Member of the Human Rights Council Advisory Committee: The Necessity of a Human Rights Approach and Effective United Nations Mechanism for the Human Rights of the Older Person (‘Chung Report’), 4 December 2009, UN Doc. A/HRC/AC/4/CRP.1, para. 45. D. Rodríguez-Pinzón and C. Martin, ‘The International Human Rights Status of Elderly Persons’ (2003) 18 American University International Law Review 915 at 946. Toro Utillano, in this volume, p. 173. Sabatino, ‘International Rights of Older Persons’, 11. International Network for the Prevention of Elder Abuse, ‘Strengthening Older People’s Rights:  Towards a UN Convention’, available at: www.inpea.net/images/Strengthening_Rights_2010.pdf, p. 6.

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vulnerable to contestation. Courts and committees can change their approach at any point in time and develop the law in a different direction (e.g. to respond to a difficult economic situation or to adapt to new societal beliefs). Third, new formulations of rights can highlight what are the specific obligations for states. As Adrienne Komanovics hopes, ‘a specific convention on the elderly would further promote a rights-based approach to ageing policies’.21 The advantage of a rights-based approach is that it also implies both negative and positive obligations for states. The UN Human Rights Committee has affirmed that ‘the principle of equality sometimes requires states parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant’.22 Therefore, it can be justified to devise mechanisms or instruments that provide specific rights (or more rights) to groups that have suffered discrimination in the past (e.g. addressing age-based discrimination), in order to ensure that they enjoy human rights on an equal level with the rest of the population. On the other hand, as such positive discrimination measures are a tool available under the current human rights framework, this may support the view that the existing framework is already adequate to ensure that everyone’s rights and interests are protected. And, fourth, it would make it more likely that an enforcement mechanism would be created to ensure the implementation of those rights. Toro Utillano also drew attention to the fact that monitoring of the rights of older persons is often lacking and legal claims in relation to their rights have only had limited success in the existing mechanisms.23 And the example of the InterAmerican Convention shows that additional enforcement mechanisms often accompany new sets of rights or new instruments. An additional reason for considering the rights of older persons as distinct from general human rights applicable to everyone is that special issues arise in relation to the implementation of those rights in relation to the elderly. Older people have unique problems and hardships and thus deserve special focus and corresponding rights. This has already been acknowledged in 1993 by the World Health Organization, which stated that ‘the elderly have distinct human rights, which were not addressed specifically in the 1948 Universal Declaration of Human Rights or other relevant human rights instruments’.24

13.4 The Rights of Older Persons as Extensions of ‘Old’ Rights Despite the above-mentioned benefits of the recognition of the rights of older persons as unique stand-alone rights, considering the rights of older persons as extensions or interpretations of current rights also comes with its own positive aspects. First, since the rights involved are already established, there is no need to get states to agree to the existence or specific content of those rights. Getting states to agree on anything can be difficult, but providing adequate protection for the elderly comes with great financial implications, 21 22

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Komanovics, ‘Age Discrimination’, p. 97. HRC, CCPR General Comment No. 18: Non-discrimination, 10 November 1989, UN Doc. HRI/GEN/1/Rev.9 (Vol. I), para. 10. The UN Committee on Economic, Social and Cultural Rights has affirmed that older persons constitute a vulnerable population and this requires states to take special measures to ensure that their rights are guaranteed: CESCR, General Comment No. 6: The Economic, Social and Cultural Rights of Older Persons, 8 December 1995, UN Doc. E/1996/22, paras. 17–19. Toro Utillano, in this volume, pp. 173ff. World Conference on Human Rights, Preparatory Committee, Status of Preparation of Publications, Studies and Documents for the World Conference, Addendum, Contribution from the World Health Organization, 29 March 1993, UN Doc. A/CONF.157/PC/61/Add.8, para. 55.

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making this an area that is particularly sensitive. The relevant rights already laid down in human rights instruments include, for example, the prohibition of ill-treatment and the deprivation of liberty (which can be used in relation to the care and treatment of the elderly), the prohibition of discrimination and the right to property (this would also apply to welfare benefits).25 Second, there is no need for ‘new’ stand-alone rights, as established rights can be interpreted in a way that ensures that older persons’ interests and rights are upheld. This was also the position taken by some of the member states during the fourth working session of the Open-Ended Working Group on Ageing, who stated that existing international human rights instruments apply to older persons, and that current deficiencies in the protection of the rights of older persons are due to poor implementation, and not to normative gaps.26 Although older persons face different practical problems, some potentially unique, these are mostly still connected to existing human rights. Thus the issues can be solved by evolving the interpretation of established rights. This would make it possible to utilise the previously established mechanisms for addressing human rights violations. Several human rights courts and committees have creatively interpreted the instruments they are connected with in order to protect the rights of older persons. However, it has to be acknowledged that existing case law shows that in practice this protection has been limited mostly to the field of social security benefits. This suggests that, unless rights are fundamentally impaired, human rights adjudicatory bodies may not interfere with the margin of discretion afforded to states.27 But this does not mean this could not be done if the ‘will’ was there. For example, since the European Court of Human Rights regards the European Convention as a living instrument which must be interpreted in the light of present-day conditions, it is entirely plausible for it to develop jurisprudence that could be sufficient to ensure that the rights and interests of older persons are guaranteed.28 The widening of jurisdiction of established human rights bodies to include the rights of older persons is also visible from the work of the UN Committee on Economic, Social and Cultural Rights, which extended the scope of the provision on discrimination by stating that the prohibition of discrimination based on ‘other status’ ‘could include age’.29 And, third, considering the rights of older persons to be an extension of established rights is conceptually compatible with the idea that all persons are equal and have equal rights. According to this idea, there should be no special rights for older people (or women or children), as long as everyone’s human rights are guaranteed. As the UN Secretary-General has noted, human rights treaties ‘apply to older persons in the same way as to all other people, providing protection for essential human rights’.30 On a conceptual level it may be counterproductive to call the rights of older persons ‘new’, as this implies that they are somehow different or that the rights of everyone do not apply to them, which is why they need ‘new’ rights. But the counter-argument to this is that other specific groups have been granted some additional rights (e.g. women, minorities, disabled people) without the erosion of the concept of equality.

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For a more detailed consideration of these rights, see Komanovics, ‘Age Discrimination’, pp. 85–93. Report of the Open-Ended Working Group on Ageing, 24 September 2013, UN Doc. A/AC.278/2013/2, p. 7. Rodríguez-Pinzón and Martin, ‘The International Human Rights Status of Elderly Persons’, 934–935. On the Convention as a living instrument, see e.g. ECtHR, Tyrer v.  the United Kingdom (Appl. no.  5856/72), judgment, 25 April 1978, para. 31; ECtHR, Van der Mussele v. Belgium (Appl. no. 8919/80), judgment, 23 November 1983, para. 32; and ECtHR, Christine Goodwin v. the United Kingdom (Appl. no. 28957/95), judgment, 11 July 2002, para. 75. CESCR, General Comment No. 6, para. 12. Follow-up to the Second World Assembly on Ageing, Report of the Secretary-General, 22 July 2011, UN Doc. A/66/ 173, para. 21.

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13.5 Conclusion The notion of equality and the essence of human rights lead to the conclusion that conceptually it is better to consider the rights of older people as interpretations of existing rights and not new rights. But this is only true as long as the established rights do not become overstretched and muddled through ever-widening interpretations and thereby lose some of their strength and appeal. Yet from a practical perspective it is beneficial to provide new formulations and recognition to the rights of older persons. This could lead to clarity in relation to both the substance and the obligations involved for states. Distinct stand-alone rights of older persons are not yet widely recognised. There are some rights that are now accepted as part of established rights because of the way the interpretation of those rights has evolved (e.g. the prohibition of discrimination is now widely considered to include age as one basis for discrimination). This is one of the reasons why the Inter-American Convention is a significant step that could assist in the rights of older persons achieving broad recognition. Yet there are aspects of the Convention that may limit its potential impact. As Toro Utillano clarifies in his chapter, some provisions of the treaty impose legal obligations, while others lay down principles, standards and best practices.31 The first type of provision reaffirms established human rights in relation to older persons and their specific problems or needs. The second type of provision are assertions of rights that may not yet meet the threshold of being established law and, thus, constitute an attempt at the progressive development of international law. This category may also include interpretations of existing rights that are taken so far that most people would consider them new rights. This mix of legal and policy provisions in the Convention may be one reason for the small number of ratifications – states are unsure of the obligations they would undertake (or perceive the obligations as too extensive). It also means that the impact of the instrument is somewhat diminished as the mixture of law and policy creates an unclear situation, and it is not certain which rights of older persons have been legally recognised, even in a regional context. This is amplified by the fact that states have very different approaches to the rights of older persons. As Toro Utillano notes in his chapter, ‘[the OAS] Working Group observed a lack of uniformity in domestic legislation within member states with regard to older persons and ageing’. This is also true globally. What is most ‘new’ or novel in relation to the rights of older persons is the focus on the issues that the elderly face and the shift in thinking (from a policy-oriented approach to a rightsbased one). There has also been a corresponding change of attitude in courts and committees. Up until recently elderly-specific aspects of human rights did not receive much attention. For example, age was not considered to be one of the grounds for discrimination. This has changed and the concerns and rights of older persons are receiving increased attention on the domestic, regional and global levels. Evidence of that trend can be found in the fact that in 2009 the Human Rights Council Advisory Committee recommended a study on the ‘need to protect the human rights of the older person in the context of a human rights framework’.32 And the UN Open-Ended Working Group on Ageing was also given the task of looking into ‘an international legal instrument to promote and protect the rights and dignity of older persons’.33 There seems to be a move towards creating an instrument on the global level to address the rights of older 31 32 33

Toro Utillano, in this volume, pp. 177ff. Chung Report, para. 1. UNGA, Resolution 67/139 Towards A Comprehensive and Integral International Legal Instrument to Promote and Protect the Rights and Dignity of Older Persons, 20 December 2012, UN Doc. A/RES/67/139.

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persons. Nevertheless, one should keep in mind that there are also reasons why this has not yet happened. States do not agree on the scope of necessary obligations, partly due to the ‘flexibility’ of the category of older persons (as addressed by Toro Utillano34) and the financial and social implications of any potential rights. Because of the diverse characteristics and perceptions of this group, the needs of older persons as a group can be hard to identify and agree upon. Yet considering the many violations that occur daily, it is important to devote more time and effort to guaranteeing that the elderly are treated with dignity and that their rights are ensured – whether that is through established human rights or by recognising distinct ‘new’ rights is of less practical significance. There are no legal obstacles to either approach; it is more a matter of political will and resources.

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14 Gender Recognition as a Human Right Holning Lau*

Protecting LGBT people from violence and discrimination does not require the creation of a new set of LGBT-specific rights, nor does it require the establishment of new international human rights standards. The legal obligations of States to safeguard the human rights of LGBT people are well established in international human rights law on the basis of the Universal Declaration of Human Rights and subsequently agreed international human rights treaties.1

14.1 Introduction This chapter builds on the statement above from the Office of the UN High Commissioner for Human Rights. Sexual orientation and gender identity rights are only new in the sense that they are newly recognised aspects of existing rights. In this chapter I focus on one particular gender identity right: the right of individuals to obtain government-issued identity documents (IDs) that match their gender identity.2 For economy of language, I will refer to this as the right to gender

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Thank you to Pieter Cannoot, Kelley Loper and Jens Theilen for helpful feedback on drafts of this chapter. Office of the UN High Commissioner for Human Rights (OHCHR), ‘Combatting discrimination based on sexual orientation and gender identity’, 7 March 2012, available at www.ohchr.org/EN/Issues/Discrimination/Pages/LGBT .aspx. A note on terminology:  ‘Gender identity’ refers to a person’s internal experience of gender, which may or may not correspond with the individual’s sex assigned at birth. In this chapter I adopt the growing practice of using the terms ‘sex’ and ‘gender’ interchangeably. With that said, I use the phrase ‘sex assigned at birth’ to refer specifically to the category ascribed to an individual based on the individual’s biological traits at birth. Some writers distinguish between sex and gender, arguing that sex categories are defined by biology while gender categories are social constructs. Others, however, have explained that sex categories are largely socially constructed as well. See e.g. IAComHR, ‘Violence against LGBTI Persons in the Americas’, 12 November 2015, OAS Doc. OAS/Ser.L/V/II.rev.1 Doc. 36, pp. 27–28; L. Westbrook and K. Schilt, ‘Doing Gender: Determining Gender’ (2014) 28 Gender & Society 32 at 53 note 1. ‘Transgender’ is an umbrella term referring to individuals whose gender identity does not match the sex assigned to them at birth. Meanwhile, ‘cisgender’ refers to individuals whose gender identity does match the sex assigned to them at birth. Transgender is an umbrella term because there are different ways in which people’s internal feelings of gender may differ from their sex assigned at birth. For example, an individual who was assigned male at birth might later identify as a woman; meanwhile, another individual assigned male at birth might later feel that they do not fit in either category within the man/woman binary. Instead of using the umbrella term ‘transgender’, some communities prefer to use more nuanced terms to describe gender identity. This chapter, however, uses the umbrella term in order to speak generally about the rights of all individuals whose internal sense of gender conflicts with their sex assigned at birth.

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recognition. This right is not explicitly mentioned in any international human rights treaty, but this chapter contends that existing treaty provisions nonetheless cover the right.3 Governments around the world issue IDs that list people’s gender. These IDs include birth certificates, passports, national identification cards and driver’s licences, among others. People are expected to present IDs in everyday life for a wide range of purposes, such as opening a bank account, renting a car, boarding an aeroplane and voting. Long-standing human rights principles support the proposition that, if IDs contain gender markers,4 individuals have the right to obtain markers that match their gender identity. For example, a transgender woman should have the right to identify herself as female on her IDs. A transgender man should have the right to identify himself as male. Individuals should also be given the right to indicate if they identify outside the male/ female binary. This chapter will begin by mapping out the ways in which this right to gender recognition derives from other well-recognised human rights. It will then examine potential limits on the right to gender recognition. It will also assess the extent to which legal institutions have come to acknowledge and protect the right to gender recognition.

14.2 Deriving the Right to Gender Recognition There are at least four long-standing human rights from which we can derive the right to gender recognition. These are namely the rights to (1) personal autonomy, which includes self-determination, (2)  informational privacy, (3)  health and (4)  bodily integrity. I  will refer to these rights as ‘basic rights’ that ground the ‘derivative right’ to gender recognition. The right to gender recognition is an instance of these existing basic rights. As Joseph Raz explained, specific instances of a more general right that share the same justificatory basis are derivative rights.5 Violating the derivative right amounts to violating the more basic right. Thus, denying someone the right to gender recognition can amount to violating their basic rights. This part of the chapter will elaborate on these basic rights by drawing on human rights treaties as well as sources of soft law, such as the Universal Declaration of Human Rights (UDHR), interpretations by UN treaty bodies and scholarly commentary.6 14.2.1 Personal Autonomy and Self-Determination The first basic right at issue is personal autonomy, in other words the freedom to make decisions about oneself, for oneself. The right to personal autonomy is a general principle that underlies the international human rights system, appearing in various provisions of the UDHR.7 Article 22 3

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My argument builds on Principle 3 of the Yogyakarta Principles, which requires states to ‘[t]ake all necessary legislative, administrative and other measures to fully respect and legally recognise each person’s self-defined gender identity’. The Yogyakarta Principles were adopted by twenty-nine prominent human rights experts as a non-binding statement of obligations that stem from international human rights law. See The Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, 23 March 2007, available at www.yogyakartaprinciples.org. I use the term ‘gender marker’ capaciously to refer to any information on IDs that categorise an individual as male or female, man or woman, etc. I use the term ‘gender marker’ regardless of whether the ID refers to such categories as ‘gender’ or ‘sex’; either way, the individual should possess the right to have that aspect of the ID reflect their internally felt sense of self. J. Raz, ‘On the Nature of Rights’ (1984) 93 Mind 194 at 197–199. It is worth emphasising that my contentions in this part of the chapter are normative in nature, and not strictly legal. To the extent that I draw on soft law, those sources are persuasive but not inherently binding as law. See e.g. R. E. Howard and J. Donnelly, ‘Human Dignity, Human Rights, and Political Regimes’ (1986) 80 American Political Science Review 801 at 805.

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of the UDHR, for example, speaks of the individual’s right to ‘free development of his personality’.8 An important aspect of protecting personal autonomy is protecting individuals’ freedom to determine their own identity.9 Indeed, while discussing UDHR Article 22, former judge Loukis Loucaides of the European Court of Human Rights (ECtHR) remarked: ‘For man to be able to function freely, in the full sense of the term, he must have the possibility of self-definition and self-determination: the right to be himself. Thus, the achievement of effective protections of freedom of the person requires legal recognition and safeguarding of his personality.’10 Claims to self-determination are particularly strong with respect to decisions that are socially constructed as being salient to intersubjective identity.11 For example, an individual might feel that playing the piano as a hobby plays a role in shaping her self-concept. Defining oneself as an amateur pianist, however, does not rise to the same level of significance as defining one’s gender. This is because societies have constructed norms and institutions that render gender especially salient to the way people view and treat each other. Accordingly, gender is a particularly important aspect of the identities that people hold in relation to each other, making it all the more crucial to protect self-determination of gender.12 The importance of self-determination should be familiar when considering other aspects of identity. For example, it is the individual  – not government  – who has the authority to determine the individual’s religious identity, political affiliation and sexual orientation.13 Self-determination is also an important aspect of racial identity, especially when a person’s complex ancestry or ambiguous phenotype results in conflict between the individual’s racial selfidentification and the way that others perceive the individual.14 Many commentators, however, have argued that there are legitimate reasons for limiting racial self-identification.15 It is beyond this chapter’s scope to delve into this debate about racial self-determination, but it is helpful to

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UNGA, Resolution 217A on Universal Declaration of Human Rights (UDHR), 10 December 1948, UN Doc. A/Res/ 217 (III) (A), Art. 22. Personal autonomy related to identity is sometimes couched in terms of the right to privacy. For example, the UN Human Rights Committee (HRC) has stated that ‘privacy’ under Art. 17 of the International Covenant on Civil and Political Rights (ICCPR), New York, 16 December 1966, in force 23 March 1976, 999 UNTS 171 refers to ‘the sphere of a person’s life in which he or she can freely express his or her identity’; see HRC, Coeriel and Aurik v. The Netherlands, Communication No. 453/1991, 9 December 1994, CCPR/C/52/D/453/1991. L. G. Loucaides, Essays on the Developing Law of Human Rights (Dordrecht: Nijhoff, 1995), pp. 83–84. For a similar claim, see C. Taylor, The Ethics of Authenticity (Cambridge, MA: Harvard University Press, 2003), pp. 31–41: ‘It may be important that my life be chosen, as John Stuart Mill asserts in On Liberty, but unless some options are more significant than others, the very idea of self-choice falls into triviality and hence incoherence. Self-choice as an ideal makes sense only because some issues are more significant than others … Which issues are significant, I do not determine’ (original emphasis). For further reading on the intersubjective nature of identity, see e.g. J. Marshall, Human Rights Law and Personal Identity (New York: Routledge, 2014), pp. 77–83. For example, the UN Committee on Economic, Social, and Cultural Rights (CESCR) has stated: ‘In determining whether a person is distinguished by one or more of the prohibited grounds [of discrimination], identification shall, if no justification exists to the contrary, be based upon self-identification by the individual concerned.’ See CESCR, General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights (Art. 2(2) ICESCR), 2 July 2009, UN Doc. E/C.12/GC/20, para. 16. The United States presents an interesting case study on racial self-determination. US public policy has shifted away from a paradigm where government actors assigned people to racial categories based on factors such as an individual’s ancestry, physical appearance and cultural affiliations. US public policy now reflects a paradigm of racial self-determination. For background on this shift, see K. A. Beydoun and E. K. Wilson, ‘Reverse Passing’ (2017) 64 UCLA Law Review 282 at 303–308. For normative arguments in support of this shift, see e.g. C. Gear Rich, ‘Elective Race: Recognizing Race Discrimination in the Era of Racial Self-Identification’ (2014) 102 Georgetown Law Journal 1501. See e.g. Beydoun and Wilson, ‘Reverse Passing’, 351–352.

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note that the operative question is about whether there are justifications for restricting racial self-determination.16 Likewise, the operative question regarding gender markers on IDs should be whether there are sufficient justifications for overriding self-determination.17 Some people believe that an individual’s gender is fixed at birth, based on their genitalia and chromosomes at birth. In this view, medical professionals assign a permanent gender to individuals based on biological traits at birth, and IDs should always reflect that assignment.18 Taking personal autonomy seriously, however, requires the state to recognise people for their self-defined experience of gender unless there are satisfactory countervailing reasons why biological sex at birth is more relevant. Section 14.3 of this chapter will examine a range of arguments that commentators sometimes make to justify linking IDs to sex assigned to individuals at birth instead of individuals’ self-defined gender. That section will explain that the purported justifications for rigidly linking IDs to sex at birth are unsatisfactory. Accordingly, gender markers should reflect self-defined gender instead. 14.2.2 Informational Privacy The second basic right that grounds the right to gender recognition is the right to privacy. We have already discussed personal autonomy, which is also referred to as the right to decisional privacy.19 Yet the right to recognition also implicates another aspect of privacy:  informational privacy, which is sometimes called the right to confidentiality.20 The right to informational privacy allows individuals to control sensitive information about themselves. Privacy rights are enshrined in international human rights treaties.21 For example, Article 17 of the International Covenant on Civil and Political Rights (ICCPR) states that ‘no one shall be subjected to arbitrary or unlawful interference with his privacy’. Although the ICCPR does not define privacy, the UN Human Rights Committee has acknowledged that people’s privacy interests include controlling ‘information concerning a person’s private life’.22 Transgender persons have the right not to have their transgender status revealed without their consent because that status qualifies as personal information to which they have a reasonable expectation of privacy.23 Other commentators have argued persuasively that, in determining 16

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Indeed, as will be discussed later in this chapter, autonomy rights are not absolute; rather, they can be restricted when such limitations are proportionately related to legitimate government goals. Section 14.3 of this chapter examines and rejects the range of potential justifications for overriding the selfdetermination of gender. This view is sometimes referred to as the ‘biological model’ of gender, which contrasts with both the ‘self-determination model’ (endorsed by this chapter) and the ‘medical model’ (which conditions gender recognition on medical criteria). See F. Romeo, ‘Beyond a Medical Model: Advocating for a New Conception of Gender Identity and the Law’ (2004–2005) 36 Columbia Human Rights Law Review 713. See B.-J. Koops et al., ‘A Typology of Privacy’ (2017) 38 University of Pennsylvania Journal of International Law 483; HRC, Coeriel and Aurik v. The Netherlands. See e.g. Koops et al., ‘A Typology of Privacy’. While I focus on decisional and informational privacy, scholars have identified additional categories of privacy. See ibid. The rights to health and bodily integrity, which I discuss below, are described by some commentators as rights to ‘bodily privacy’. See ibid. at 569. ‘A review of the basic international conventions of international human rights reveals that privacy is mentioned in most of them’: A. Rengel, ‘Privacy as an International Human Right and the Right to Obscurity in Cyberspace’ (2014) 2 Groningen Journal of International Law 33 at 40. HRC, CCPR General Comment No. 16: The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, 8 April 1988, HRI/GEN/1/Rev.9 (Vol. I), para. 10. For additional recognition that ‘the protection of personal data represents a special form of respect for the right to privacy’, see HRC, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, 16 May 2011, UN Doc. A/HRC/17/27, para. 58. Commentators have argued that privacy rights arise when people have reasonable expectations of privacy. This ‘reasonable expectations’ test originated in the US Supreme Court case of Katz v. United States, 389 U.S. 347, 360

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whether information is considered personal information, we should consider the relevance of the information to individual’s self-determination of identity.24 As already discussed, gender markers present information that is relevant to self-determination. In addition, commentators have explained that privacy rights should cover the disclosure of certain information if such disclosure risks harming the subject of the information.25 Unfortunately, such informational harms arise when exposing individuals’ transgender status. By forbidding individuals from self-identifying their gender on IDs, governments will disclose some people’s gender identity against their will, making them targets of discrimination and persecution. Consider the example of a transgender individual who performs his gender in stereotypically masculine ways. He wears conventional men’s clothing, has a masculine hairstyle and moves with mannerisms that people typically associate with men. This individual has undergone medical treatment to comport his body with cultural conceptions of being a man. He has also legally changed his name to one that is typically used by men. Based on these performances of gender, people regard and treat this individual as a man. However, if this man is required to hold IDs that mark him as female, the IDs will disclose his transgender status, putting him at risk of discrimination and persecution.26 Such disclosure infringes upon his right to keep personal information private. 14.2.3 Health In addition to personal autonomy and privacy, the human right to health is another basic right that grounds the right to gender recognition. The right to health appears in numerous international agreements including the Constitution of the World Health Organization, the UDHR and the International Covenant on Economic, Social and Cultural Rights (ICESCR).27 Some (but not all) transgender people consider their gender identity to be a health issue.28 For example, a transgender man might seek medical treatment for gender dysphoria. The World Professional Association for Transgender Health (WPATH) defines gender dysphoria as ‘discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth’.29 WPATH has promulgated standards of care that guide medical professionals treating gender dysphoria. For the transgender man in our example, treatment may require that he live ‘full-time’ as a man and present himself as a man to other people.30 This patient will

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(USA 1967) (Harlan J, concurring). Commentators have argued that the ‘reasonable expectations’ test is a helpful way to theorise privacy rights in international law. See e.g. J. J. Paust, ‘Can You Hear Me Now? Private Communication, National Security, and the Human Rights Disconnect’ (2015) 15 Chicago Journal of International Law 612 at 628. See e.g. H. Nissenbaum, ‘Privacy as Contextual Integrity’ (2004) 79 Washington Law Review 119 at 148–149; F. S. Chlapowski, ‘The Constitutional Protection of Informational Privacy’ (1991) 71 Boston University Law Review 133 at 153–55. See Nissenbaum, ‘Privacy as Contextual Integrity’, 147. For reports on discrimination and persecution against transgender persons, see e.g. N. Ghoshal and K. Knight, ‘Rights in Transition:  Making Legal Recognition for Transgender People a Global Priority’, World Report 2016, Human Rights Watch, available at www.hrw.org/world-report/2016/rights-in-transition#; J. M. Grant et al., Injustice at Every Turn: A Report of the National Transgender Discrimination Survey (Washington DC: National Center for Transgender Equality and National Gay and Lesbian Task Force, 2011). For background on the right to health in international human rights law, see OHCHR and World Health Organization (WHO), Right to Health: Fact Sheet No. 31 (Geneva: United Nations, 2008). A. Lee, ‘Trans Models in Prison: The Medicalization of Gender Identity and the Eighth Amendment Right to Sex Reassignment Therapy’ (2008) 31 Harvard Journal of Law & Gender 447 at 468. World Professional Association for Transgender Health (WPATH), ‘Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People’, 7th version, 2016, p. 5, available at www.wpath .org/publications/soc. WPATH, ‘Standards of Care’, pp. 9–10.

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have difficulty complying with his treatment plan if the government refuses to grant him IDs that mark him as a man. It is difficult, if not impossible, to live full-time in a particular gender if people treat you otherwise based on the information on your IDs. Indeed, the American Psychiatric Association has stated that, for some people, treatment of gender dysphoria requires both ‘social and legal transition to the [patient’s] desired gender’.31 Note that the diagnosis of gender dysphoria does not suggest that transgender identities are pathological or that transgender people are inherently disordered.32 Properly understood, gender dysphoria refers not to being transgender but to the discomfort or distress that a transgender person may experience due largely to external stressors stemming from society’s biases against transgender identities.33 To be sure, some transgender persons do not believe their experiences are related to gender dysphoria or any other diagnosable medical condition.34 Meanwhile, there are other transgender persons who wish to receive a diagnosis but are unable to access medical care due to their socioeconomic circumstances.35 For individuals who either disavow medical diagnosis or cannot access medical care, the rights to self-determination and informational privacy provide a firm enough basis for the right to gender recognition. Nonetheless, for many other transgender individuals the right to health provides additional support for their right to gender recognition. 14.2.4 Bodily Integrity The fourth basic right that supports the right to gender recognition is the right to bodily integrity, also known as the right to physical integrity. This right includes the freedom to make decisions about one’s own body. The right to bodily integrity dictates that government must not force individuals to undergo unwanted medical treatment. Some human rights instruments explicitly recognise the right to bodily integrity.36 Even when the right is not explicitly mentioned, 31

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American Psychiatric Association (APA), Gender Dysphoria (2013), pp. 1–2, available at www.psychiatry.org/File%20 Library/Psychiatrists/Practice/DSM/APA_DSM-5-Gender-Dysphoria.pdf. ‘[T]ranssexual, transgender, and gender nonconforming individuals are not inherently disordered. Rather, the distress of gender dysphoria, when present, is the concern that might be diagnosable’: WPATH, ‘Standards of Care’, 6. The APA has said that it replaced ‘gender identity disorder’ with ‘gender dysphoria’ in its diagnostic manual in part because doing so ‘removes the connotation that the patient is “disordered” ’: APA, Gender Dysphoria, p. 2. In 2018 the WHO issued a revised version of its diagnostic catalogue. The document no longer describes being transgender as a mental disorder. It instead frames ‘gender incongruence’ as a condition related to sexual health. Member states approved the revised document at the 2019 World Health Assembly, and they have until 2022 to implement any relevant changes. Agence France-Presse, ‘WHO Takes Transgenderism Out of Mental Illness Category’, The Guardian, 19 June 2018; ‘Transgender No Longer Recognised as “Disorder” by WHO’, BBC, 29 May 2019. For further discussion about depathologisation, see J. T. Theilen, ‘Depathologisation of Transgenderism and International Human Rights Law’ (2016) 14 Human Rights Law Review 327. WPATH has noted that ‘symptoms [of distress] are socially induced and are not inherent to being transsexual, transgender, or gender nonconforming’:  WPATH, ‘Standards of Care’, p.  4. See also R. Robles et  al., ‘Removing Transgender Identity from the Classification of Mental Disorders: A Mexican Field Study for ICD-11’ (2016) 3 Lancet 850. This focus on the socially induced nature of impairments echoes the ‘social model’ of disability reflected in the Convention on the Rights of Persons with Disabilities (CRPD), New York, 13 December 2006, in force 3 May 2008, 2515 UNTS 3. See K. Loper, ‘W v Registrar of Marriages and the Right to Equality in Hong Kong’ (2011) 41 Hong Kong Law Journal 89 at 99. There is a debate within transgender communities about whether to link the experiences of transgender people to medical discourse. For a discussion of this debate, see e.g. Lee, ‘Trans Models in Prison’, 457–459 and 465–471. For a discussion of this dynamic in the United States, see D. Spade, ‘Resisting Medicine, Re/Modeling Gender’ (2003) 18 Berkeley Women’s Law Journal 15 at 35. American Convention on Human Rights (ACHR), San José, 22 November 1969, in force 18 July 1978, 1144 UNTS 144, Art. 5; CRPD, Art. 17; Charter of Fundamental Rights of the European Union, Nizza, 7 December 2000, in force 1 December 2009, OJ 2012 No. C 326/2, Art. 3.

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it has been derived from other rights.37 The ECtHR, among other courts around the world, has reasoned that the right to bodily integrity derives from the right to privacy.38 This reasoning can be extended to derive the right to bodily integrity from privacy provisions in international treaties.39 In particularly egregious cases, the right to bodily integrity can also be derived from the right to be free from torture and other cruel, inhuman or degrading treatment.40 In light of the right to bodily integrity, an individual’s right to gender recognition should not be contingent upon the individual undergoing medical care such as genitalia surgeries. Transgender individuals, like all people, have the right to decide whether to pursue invasive medical care. Many surgeries related to gender identity pose risks, including the loss of sexual function. Because gender recognition is so crucial to everyday life, government may coerce individuals into surgery by making gender recognition contingent on surgery. This coercion amounts to a violation of bodily integrity.41 In sum, the right to gender recognition derives from the rights to self-determination, informational privacy, health and bodily integrity. Our discussion thus far has focused on individuals who, whether transgender or cisgender, are comfortable identifying as male or female. It is important, however, to acknowledge that some people do not self-identify as either male or female. Indeed, in some communities, for example in South Asia, there is a long cultural history of recognising more than two gender categories.42 In other parts of the world, such as the United States, a growing number of people are seeking legal recognition of non-binary gender even though local culture lacks the tradition of recognising non-binary categories.43 Mainstream medical organisations also acknowledge that gender does not fit into two neat categories.44 Thus, if government is to take the right to gender recognition seriously, it ought to grant individuals the ability to opt out of selecting binary options on IDs.45

14.3 Examining Potential Justifications for Overriding the Right to Gender Recognition To say that individuals have a right to determine their legal gender is not to say that biological aspects of sex are completely irrelevant. However, to the extent that government has an interest in categorising individuals based on biological aspects of sex, it must do so in a way that comports with the proportionality principle that undergirds human rights law.46 The basic 37 38

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Thus, the right to bodily integrity is both a derivative right and a basic right from which the right to gender recognition derives. See e.g. J. Marshall, Personal Freedom through Human Rights Law? Autonomy, Identity, and Integrity in the European Convention of Human Rights (Leiden: Nijhoff, 2001), pp. 165–201. Rengel, ‘Privacy as an International Human Right’, 40. See I. Roagna, Protecting the Right to Respect for Privacy and Family Life under the European Convention of Human Rights (Strasbourg:  Council of Europe, 2012), p.  24. For the right against torture and other cruel, inhuman or degrading treatment, see e.g. ICCPR, Art. 7; UDHR, Art. 5. The ACHR specifically lists physical integrity as a component of the right to humane treatment. Indeed, the ECtHR ruled that conditioning gender recognition on sterilisation violated the right to bodily integrity that is subsumed by the European Convention’s protection of privacy in Art. 8. See ECtHR, A.P., Garçon and Nicot v. France (Appl. nos. 79885/12, 52471/13, 52596/13), judgment, 6 April 2017. See S. Nanda, Gender Diversity: Cross-Cultural Variations, 2nd ed. (Prospect Hills: Waveland Press, 2014), pp. 27–41. See A. Herpolsheimer, ‘A Third Option: Identity Documents, Gender Non-Conformity, and the Law’ (2017–2018) 39 Women’s Rights Law Reporter 46. Within the United States, some Native American communities have long histories of conceptualising gender beyond binary categories. See Nanda, Gender Diversity, pp. 11–26. See J. A. Greenberg, Intersexuality and the Law: Why Sex Matters (New York: New York University Press, 2012). For a judicial opinion supporting this view, see e.g. Supreme Court of India, National Legal Services Authority (NALSA) v. Union of India, Writ Petition (Civil) No. 604 of 2013, judgment, 15 April 2014, 5 SCC 438. For a discussion on how the proportionality principle has become commonplace in constitutional law, see A. Stone Sweet and J. Mathews, ‘Proportionality Analysis and Global Constitutionalism’ (2008–2009) 47 Columbia Journal of Transnational Law 72. For a discussion on how UN treaty bodies and regional human rights bodies have also adopted the proportionality principle, see J. Christoffersen, ‘Straight Human Rights Talk – Why Proportionality Does (Not)

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idea to proportionality is that governmental restriction of a right is only justified if it is proportionate to a legitimate aim on which the government acted.47 For example, the UN Human Rights Committee has stated: ‘Where such restrictions are made, States must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights. In no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right.’48 This section of the chapter examines reasons why a government might put forward for listing individuals’ assigned sex at birth on IDs.49 Specifically, I  will evaluate arguments that documenting people’s biological sex at birth is important with respect to six contexts: (1) identity verification, (2) health-related research, (3) preventing fraud and protecting public safety, (4) regulation of sports, (5) regulation of marriage and (6) protecting public morality. 14.3.1 Identity Verification It is worth questioning whether governments ought to include gender markers on IDs in the first place.50 This chapter will, however, accept arguendo that the state may include gender markers on IDs for identity verification purposes. For example, if a police agent pulls aside a driver, the agent might use the gender marker on their driving licence to evaluate whether the licence belongs to the driver. A rental car agent might do the same. Even if we accept these acts of identity verification constitute a legitimate government interest, linking gender markers to one’s sex assigned at birth is not sufficiently related to this governmental interest. At the outset, one should recognise that gender markers are a crude tool for identity verification because the rightful holder of a licence may perform gender in ways that conflict with stereotyped expectations of appearance. There is no correct way to look or behave based on one’s gender marker. Women (both cisgender and transgender) have the right to breach stereotypes about womanhood. The same can be said for men and manhood. Indeed, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) calls for the elimination of ‘stereotyped roles for men and women’.51 Thus, our hypothetical police or rental

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Matter’ (2010) 55 Scandinavian Studies in Law 11. For further background on the proportionality principle, see e.g. A. Barak, Proportionality: Constitutional Rights and Their Limitations (New York: Cambridge University Press, 2012); M. Cohen-Eliya and I. Porat, ‘Proportionality and Constitutional Culture’ (2011) 59 American Journal of Comparative Law 463. Some jurisdictions around the world have adopted a structured multi-step test for proportionality that originated in German law. Other jurisdictions evaluate proportionality through analyses that are much more fluid. See H. Lau and H. Li, ‘American Equal Protection and Global Convergence’ (2017) 86 Fordham Law Review 1251 at 1279–1285. HRC, CCPR General Comment No. 31: The nature of the general legal obligation imposed on States Parties to the Covenant, 26 May 2004, UN Doc. CCPR/C/21/Rev.1/Add. 13, para. 6. The analysis that follows focuses on adults. Legal gender recognition of children is an issue that raises additional considerations. For a discussion of such considerations, see UNGA, Report of UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, V. Madrigal-Borloz: Protection against violence and discrimination based on sexual orientation and gender identity, 12 July 2018, UN Doc. A/73/152, paras. 33–35. See e.g. A. James and N. Wipfler, ‘Identity Crisis:  The Limitations of Expanding Government Recognition of Gender Identity and the Possibility Genderless Identity Documents’ (2016) 39 Harvard Journal of Law & Gender 491; T. Bennett, ‘“No Man’s Land”: Non-Binary Sex Identification in Australian Law and Policy’ (2014) 37 UNSW Law Journal 847. Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), New York, 18 December 1979, in force 3 September 1981, 1249 UNTS 13, Art. 5.

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care agent should recognise that gender markers are only a rough tool for verifying the identity of a licence holder. One might contend that police and rental car agents can resort to checking a driver’s genitalia to confirm they are the rightful holder of the driving licence, but doing so would raise privacy concerns, especially when the licence holder is not accused of any wrongdoing. Additionally, to the best of my knowledge, neither police nor rental car agents usually check genitalia to verify licence ownership anyway. Checking genitalia is also an imprecise verification method because an individual’s current genitalia may not correspond with the sex assigned to them based on their genitalia at birth. Many (but not all) transgender people undergo surgeries to modify their genitalia. Indeed, some governments facilitate such surgeries by offering them at state hospitals or subsidising the surgeries at private facilities. Meanwhile, many intersex people have ambiguous genitalia that a police or rental car agent will not recognise as confirming the sex assigned to the individual at birth.52 While gender markers are a rough tool for verifying IDs, prohibiting individuals from listing their self-identified gender makes matters worse. For many, if not most people, gender identity influences their everyday lived experience. Thus, a transgender woman may present herself in ways that are culturally associated with womanhood, such as through clothing, hairstyle and behaviour. She may have also undergone hormone therapy and surgical procedures to appear more feminine. If the government were to list this individual as ‘male’ instead of ‘female’ on her driving licence, that would not only compromise the individual’s self-determination, it would also frustrate the usefulness of the gender marker because it increases the likelihood of false negatives. Agents evaluating the licence will be more likely to conclude incorrectly that the licence does not belong to its holder because the individual appears stereotypically female while holding a licence that marks the individual as male. Identity verification is thus an unsatisfactory justification for rigidly linking gender markers to assigned sex at birth. Indeed, restricting the right to gender recognition is far from being a proportionate method for facilitating identity verification because it results in frustrating identity verification. Instead of rigidly linking IDs to sex assigned at birth, governments should include other information on IDs, such as photographs of the document holder, to facilitate identity verification. 14.3.2 Health-Related Research Government may have legitimate reasons to categorise individuals based on biology for healthrelated research. It might wish to study how health issues manifest differently based on people’s biological sex at birth. To pursue such research, however, government need not link gender markers on IDs to individuals’ biological sex at birth. Doing so would be a disproportionate course of action. There are ways to identify research subjects’ biological sex at birth without relying on IDs.53 For example, researchers could either ask research subjects directly about their biological sex at birth or rely on medical records that document this. In other words, while government may

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Some but not all intersex individuals undergo surgeries to make their genitals conform to binary sex categories. Intersex rights advocates have sought to outlaw the imposition of such surgeries on minors who are unable to consent to the surgeries themselves. This demand is reflected in the Malta Declaration signed by representatives from thirty intersex rights organisations from around the world. See Organisation Intersex International Europe, Malta Declaration, 1 December 2013, available at https://oiieurope.org/malta-declaration. Evaluating whether there are ‘less restrictive means’ to achieving legitimate interests is a common part of proportionality analysis. See E. Brems and L. Lavrysen, ‘“Don’t Use a Sledgehammer to Crack a Nut”: Less Restrictive Means in the Case Law of the European Court of Human Rights’ (2015) 15 Human Rights Law Review 139.

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have a legitimate interest in categorising individuals based on biological sex at birth for certain types of health research, marking this information on IDs is an inappropriate means for achieving those ends. IDs serve many purposes beyond identifying people for medical research. In legal discourse, the proportionality principle is sometimes described by the adage: ‘don’t use a sledgehammer to crack a nut’.54 IDs are a proverbial sledgehammer for advancing research. 14.3.3 Preventing Fraud and Protecting Public Safety Preventing fraud and protecting public safety are sometimes offered as justifications for linking gender markers on IDs to biological sex.55 There is fear that allowing individuals to determine their own gender would foster criminal activity. For example, some commentators worry that individuals will change their gender markers on IDs, not due to their deeply felt experiences about gender but to evade law enforcement. Some commentators also worry that individuals will change their gender markers to commit crimes. They fear, for example, that men will change their gender markers to gain access to women-only spaces – such as sex-segregated public toilets, prisons or homeless shelters – to prey on women.56 While preventing fraud and protecting public safety are legitimate interests, there are good public policies for addressing these concerns short of banning changes to gender markers on IDs. Governments have other tools for addressing worries about fugitives altering their IDs to evade law enforcement or about individuals seeking to conceal a criminal record for other purposes. Governments could link current IDs to previous IDs in their computer systems, such that old criminal records will appear during background checks for people who have obtained new IDs with changed gender markers.57 Thus, when an individual presents a passport at an immigration checkpoint, or when an employer uses a national ID card to check a job applicant’s background, the computer system would show any criminal activity linked to the individual’s earlier IDs. It is also worth noting that changing one’s gender marker on IDs is an enormous undertaking. Doing so commits an individual to presenting a particular gender marker whenever IDs are required to be shown. This likely deters individuals who are contemplating changing their legal gender for nefarious reasons. For example, a male fugitive seeking to evade the authority of the law will likely not want to change the gender marker on his ID to ‘female’. Doing so would commit the man to being perceived as a woman whenever he shows his ID. To evade law enforcement, the criminal is more likely to adopt a new persona of the same gender. To the extent that government is concerned about safety in sex-segregated spaces, there are again tools for protecting safety that do not infringe upon the right to gender recognition. There are already laws that punish crimes such as sexual assault in sex-segregated spaces, and these laws deter people from changing their IDs solely to commit such crimes. If a government still has concerns about safety, the proportionality principle requires that government to pursue 54

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See e.g. ibid. Sometimes the adage is presented as ‘you must not use a steam hammer to crack a nut, if a nutcracker would do.’ UK House of Lords, R. v. Goldstein [1983], 1 All ER 434, 436e. For critique of such arguments, see Open Society Foundations, License to Be Yourself:  Responding to National Security and Identity Fraud Arguments (2016). Public safety in public toilets has become a particularly large concern in debates over transgender rights in the United States. These debates do not necessarily concern regulation of IDs; they often focus on public policies that directly regulate access to public toilets. See A. Dastagir, ‘The Imaginary Predator in America’s Transgender Bathroom War’, USA Today, 28 April 2016. For example, the United Kingdom offers a service whereby transgender individuals can request their comprehensive criminal background reports to be sent to prospective employers in a way that does not disclose their gender history. See Disclosure & Barring Service, www.gov.uk/government/organisations/disclosure-and-barring-service.

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public policies that are more tailored to addressing those concerns than banning gender selfdetermination on IDs. For example, US law requires that inmates’ gender for sex-segregated prisons be determined on a case-by-case basis, not based on a blanket policy that prioritises physical anatomy over self-determination.58 When determining an inmate’s gender for prison assignment, prison administrators are required to consider the particular inmate’s safety as well as any security risks that the inmate may pose.59 14.3.4 Regulation of Sports Another context to consider is sports. A person’s biological sex can sometimes influence their competitiveness in sports. Thus many sports competitions have traditionally been segregated by sex. Commentators have been exploring the questions of whether, when and how sports should still be segregated by biological sex.60 This chapter does not take a position on these complicated questions. Instead, I seek to use the example of sports to illuminate again the importance of the proportionality principle. Let us assume arguendo that some sports competitions should be segregated by biological sex. Crafting ID regulations to effectuate such segregation would be a disproportionate response. IDs are important for many aspects of life beyond sports. Meanwhile, there are other, more tailored, ways to segregate sports by biological sex. For example, current Olympics rules require transgender women who wish to compete in women’s events to demonstrate through testing that they have testosterone levels comparable to those of cisgender women.61 This policy intervention is a more tailored approach to segregating sports compared to restricting changes to IDs. 14.3.5 Regulation of Marriage Another area that sometimes raises concern is marriage. One might contend that the state has an interest in listing biological sex on IDs to screen people for marriage, ensuring that only different-sex couples marry legally. This contention, however, is flawed. While I believe a proper understanding of human rights requires extending marriage rights to same-sex couples, space prohibits me from developing that argument here. Even assuming arguendo, however, that the state may define marriage as being between one man and one woman, there is no legitimate reason for defining ‘man’ and ‘woman’ based on biological criteria. It cannot be that ‘man’ and ‘woman’ must be defined biologically to limit marriage to procreative couples. In most, if not all, parts of the world infertility has not been a bar to marriage.62 Thus it is disingenuous

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United States of America, Prison Rape Elimination Act National Standards, 28 CFR § 115.42 (USA 2012). For a discussion that questions the effectiveness of sex segregation as a tool for protecting inmates against violence, see D. Spade, ‘Documenting Gender’ (2008) 59 Hastings Law Journal 803 at 808–813. 28 CFR § 115.42 (c)–(d). See e.g. N. Leong, ‘Against Women’s Sports’ (2017–18) 95 Washington University Law Review 1249; E. McDonagh and L. Pappano, Playing with the Boys: Why Separate Is Not Equal in Sports (Oxford and New York: Oxford University Press, 2008); C. F. Sullivan, ‘Gender Verification and Gender Policies in Elite Sport: Eligibility and “Fair Play”’ (2011) 35 Journal of Sport & Social Issues 400. Associated Press, ‘IOC Rules that Transgender Athletes Can Compete Without Surgery,’ The Guardian, 24 January 2016. For elaboration on this point, see A. X. Fellmeth, ‘State Regulation of Sexuality in International Human Rights Law and Theory’ (2008) 50 William and Mary Law Review 797 at 887–890.

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to say that governments can justifiably link IDs to biological sex in order to restrict marriage to procreative couples.63 14.3.6 Protecting Public Morality Finally, states should not restrict gender recognition based on so-called moral disapproval of transgender people. Such moral disapproval does not qualify as a legitimate government interest. While human rights treaties allow restricting certain rights to protect public morality, it is imperative to define ‘morality’ narrowly. As the UN Human Rights Committee has explained, deferring to states’ own definitions of ‘morality’ would allow far too many state laws and practices to escape oversight from human rights mechanisms.64 Accordingly, morality must be defined narrowly, for example to include instances where there is strong international consensus on a moral position, or when a moral position is based on consideration of tangible harms.65 Disapproval of transgender people fails such definition. Moreover, disapproval of transgender people is a form of disapproval of gender nonconformity.66 This position conflicts with the principle against gender stereotyping that is found in CEDAW and other international instruments.67 Accordingly, moral disapproval of gender nonconformity, including moral disapproval of transgender identities, is not a legitimate government interest.

14.4 Evaluating the Legal Landscape While the right to gender recognition derives from long-standing principles, legal institutions have only recently begun to acknowledge this right. At the international level, the UN High Commissioner for Human Rights and UN Independent Expert on sexual orientation and gender identity both expressed support for the self-determination approach to gender recognition.68 The OHCHR has asserted that states should ‘facilitate legal recognition of the preferred gender of transgender persons and establish arrangements to permit relevant identity documents to be reissued reflecting preferred gender and name, without infringements of other human rights’.69 Recall that the right to bodily integrity should not be compromised in exchange for the right to gender recognition. The UN Human Rights Committee and the CEDAW Committee have both urged states to eliminate abusive conditions for gender recognition.70 The UN Human

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Even if one were to expect men and women to perform different social roles in marriage, there is still no need to define ‘men’ and ‘women’ based on biology. I believe, however, that expecting men and women to perform different marital roles conflicts with state obligations to dismantle gender stereotypes pursuant to Art. 5 of CEDAW. See HRC, Toonen v.  Australia, Communication No. 488/1992, 31 March 1994, UN Doc. CCPR/C/50/D/488/1992 (refusing to accept Tasmania’s assertion of morality to justify its law criminalising same-sex sodomy). See Fellmeth, ‘State Regulation of Sexuality’, 909–911. See HRC, Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, 17 November 2011, UN Doc. A/HRC/19/41, para. 20. See CEDAW, Art. 5.  For further background on the anti-stereotype principle in CEDAW, see R. Holtmaat and P.  Post, ‘Enhancing LGBTI Rights by Changing the Interpretation of the Convention on the Elimination of All Forms of Discrimination Against Women?’ (2015) 33 Nordic Journal of Human Rights 319 at 324–325. UNGA, Report of UN Independent Expert (V. Madrigal-Borloz), para. 39. HRC, Discriminatory laws and practices, UN Doc. A/HRC/19/41, para. 84(h). See also, HRC, Discrimination and violence against individuals based on their sexual orientation and gender identity, 4 May 2015, UN Doc. A/HRC/29/ 23, para. 79(i). See e.g. CEDAW Committee, Concluding Observations on the Netherlands, 5 February 2010, UN Doc. CEDAW/ C/NLD/CO/5, para. 46. HRC, CCPR Concluding Observations on the seventh periodic report of Ukraine, 22 August 2013, UN Doc. CCPR/C/UKR/CO/7, para. 10.

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Rights Committee also held that Australia violated the ICCPR by requiring transgender individuals to be unmarried when changing their birth certificates to reflect their gender identity.71 At the regional level, the Inter-American human rights system has endorsed the self-determination approach to gender recognition. In a 2018 Advisory Opinion responding to Costa Rica, the InterAmerican Court of Human Rights (IACtHR) held that transgender individuals have a right to modify their gender markers on government IDs based on self-determination.72 The Inter-American Commission on Human Rights (IAComHR) had also previously recommended that states adopt a self-determination approach. It stated its belief that states are obligated to pass laws ‘which recognize the right to identity of trans persons in a way that does not pathologize trans persons’ and praised Argentina as a model jurisdiction because it allows persons to have their gender recognised entirely based on self-determination.73 The Council of Europe has also made strides in protecting the right to gender recognition. The ECtHR has not, however, fully adopted a self-determination approach. Through a series of cases from Goodwin v. United Kingdom (2002) to A.P., Garçon & Nicot v. France (2017), the ECtHR has protected a partial right to gender recognition.74 Although it has held that gender recognition cannot be contingent upon sterilisation surgeries,75 it has allowed states to impose other restrictive conditions such as forced medical examination,76 mental health diagnosis77 and requirements that transgender people be unmarried when changing their gender markers.78 Beyond the ECtHR, other institutions within the Council of Europe have issued non-binding resolutions that support the right to gender recognition. Most notably, in 2015 a Parliamentary Assembly resolution stated that governments should ‘develop quick, transparent and accessible procedures, based on self-determination, for changing the name and registered sex of transgender people on birth certificates, identity cards, passports, educational certificates and other similar documents’ and to ‘consider including a third gender option in identity documents for those who seek it’.79 At the national level, Argentina, Belgium, Brazil, Chile, Colombia, Denmark, Ireland, Malta, Norway and Pakistan have reformed their laws to allow adults to select male or female gender markers for all government IDs based entirely on self-determination.80 Among these countries, 71 72

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HRC, G. v. Australia, Communication No. 2172/2012, 28 June 2017, UN Doc. CCPR/C/119/D/2172/2012. IACtHR, Gender Identity, Equality and Non-Discrimination with Regard to Same-Sex Couples. State Obligations in Relation to Change of Name, Gender Identity, and Rights Deriving from a Relationship between Same-Sex Couples, Advisory Opinion No. 24/17 of 24 November 2017, Ser. A, No. 24, paras. 85–171. IAComHR, Violence Against LGBTI Persons, para. 419. ECtHR, Christine Goodwin v. United Kingdom, (App. no. 28957/95), judgment, 11 July 2002; ECtHR, A.P., Garçon and Nicot v. France. ECtHR, Nicot v. France. ECtHR, Garçon v. France. ECtHR, A.P. v. France. ECtHR, Parry v. United Kingdom, (App. no. 42971/05), decision, 28 November 2006. Parliamentary Assembly, Council of Europe, Resolution 2048 on Discrimination against transgender people in Europe, 22 April 2015, paras. 6.2.1, 6.2.4. Earlier, the Parliamentary Assembly had called upon member states to protect the right to ‘official documents that reflect an individual’s preferred gender identity, without any prior obligation to undergo sterilisation or other medical procedures such as sex reassignment surgery and hormonal therapy’. Resolution 1728 on Discrimination on the basis of sexual orientation and gender identity, 29 April 2010, para. 16.11.2. The Council of Europe’s Committee of Ministers also promulgated a recommendation that ‘requirements, including changes of a physical nature, for legal recognition of a gender reassignment, should be regularly reviewed in order to remove abusive requirements’. Recommendation CM/Rec (2010)5 of the Committee of Ministers to member states on measures to combat discrimination on grounds of sexual orientation or gender identity, 31 March 2010, para. 20. This list of countries is not meant to be exhaustive. At the time of writing, some countries appear to be on the cusp of reforming their gender recognition policies. For a survey of gender recognition laws around the world, see Z. Chiam, S. Duffy and M. González Gil, Trans Legal Mapping Report 2016:  Recognition Before the Law (Geneva:  ILGA,

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Pakistan also allows individuals to select a third gender option,81 while Denmark and Malta provide a third gender option for certain forms of ID.82 In a landmark 2014 case, the Supreme Court of India held that individuals have the right to declare their gender on IDs – as male, female or a third gender – based entirely on self-determination.83 However, implementation of this judicial order has been lacking.84 The Constitutional Court of Nepal in 2007 held that individuals have a right to declare themselves as being a third gender based on ‘self feelings’,85 but implementation of that right has been slow and inconsistent.86 In addition, Nepal does not appear to allow individuals to change their legal gender from male to female, or vice versa, instead of opting for the third gender category. More recently, the Constitutional Courts of Austria87 and Germany88 have also ruled that individuals have the right to a third gender option on government records that list a person’s gender. It is presently unclear, however, whether this option extends only to individuals who are deemed to be intersex based on biological sex traits.89 While it is infeasible for this chapter to perform a comprehensive survey of every country’s gender recognition policies, I have highlighted certain countries to illustrate law reforms that advance the right to gender recognition. Although legal institutions have only started to acknowledge and protect the right to gender recognition, momentum has grown in recent years. One threat to that momentum is the argument that gender recognition is a radically new right that ought to be rejected. To address this concern, this chapter has sought to illuminate the fact that the right to gender recognition is only new in the sense that it is a newly recognised aspect of pre-existing rights.

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2016). After Chiam et  al. published their survey, Belgium, Chile and Pakistan enacted legislation that takes the self-determination approach to gender recognition. See P. Cannoot, ‘The Limits to Gender Self-Determination in a Stereotyped Legal System: Lessons from the Belgian Gender Recognition Act’, in E. Brems et al. (eds.), Protecting Trans*Rights in the Age of Gender Self-Determination (forthcoming); US Library of Congress, Brazil, ‘National Supervisory of Justice authorizes transgender persons to change name and gender at civil registries without judicial approval, 11 July 2018, available at www.loc.gov/law/foreign-news/article/brazil-national-supervisory-of-justiceauthorizes-transgender-persons-to-change-name-and-gender-at-civil-registries-without-judicial-approval; Government of Chile, ‘Presidente Piñera promulga Ley de Identidad de Género’, 28 November 2018, available at https://prensa .presidencia.cl/comunicado.aspx?id=87561; A. Hashim, ‘Pakistan passes landmark transgender rights law’, AlJazeera. com, 9 May 2018, available at www.aljazeera.com/news/2018/05/pakistan-passes-landmark-transgender-rights-law180509095207950.html. Hashim, ‘Pakistan passes landmark transgender rights law’. L. Holzer, ‘Non-Binary Gender Registration Models in Europe’, ILGA-Europe, September 2018, available at www .ilga-europe.org/resources/ilga-europe-reports-and-other-materials/non-binary-gender-registration-models-europe. Supreme Court of India, National Legal Services Authority v.  Union of India. NALSA upheld ‘[t]ransgender persons’ right to decide their self-identified gender … such as male, female or as third gender” (para. 129), and the main opinion in NALSA, written by Justice Radhakrishnan, generally supports self-determination; however, certain parts of the judgment have been rightly criticised for being inconsistent with the principle of self-determination. See Aniruddha Dutta, ‘Contradictory Tendencies: The Supreme Court’s NALSA Judgment on Transgender Recognition and Rights’, (2014) 5 Journal of Indian Law and Society 225. See D. Jyoti, ‘Cut the Red Tape: Why the New Transgender Rights Bill Might Harm the Community’, Hindustan Times, 26 July 2017. Constitutional Court of Nepal, Pant et al. v. Nepal, Writ No. 917, Order, 21 December 2007, available in English at (2008) 2 NJA Law Journal 261. See K. Knight, ‘Nepal’s Third Gender Passport Blazes Trails’, Human Rights Watch, 26 October 2015, available at www.hrw.org/news/2015/10/26/nepals-third-gender-passport-blazes-trails. Constitutional Court of Austria (VfGH), Order of 15 June 2018, Docket No. G 77/2018. Constitutional Court of Germany (BVerfG), Order of the First Senate of 10 October 2017, BVerfG, 1 BvR 2019/16. For a discussion on this ambiguity with respect to Germany, see P. Dunne and J. Mulder, ‘Beyond the Binary: Toward a Third Sex Category in Germany?’ (2018) 19 German Law Journal 627.

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15 Pre-existing Rights and Future Articulations Temporal Rhetoric in the Struggle for Trans Rights Jens T. Theilen*

15.1 Introduction: Temporalities of Struggle For decades now, trans activists have been struggling to make human rights law more inclusive of trans persons – from early efforts at the national level in various countries, over first successes in litigation regarding a right to legal gender recognition at the regional and global levels, to broader campaigns concerning depathologisation, access to health care, housing, education, employment, and so much more. While general tendencies can of course be made out,1 struggles such as these are complex and non-linear.2 Not only are there events commonly classified as victories or defeats (applications to human rights bodies being vindicated or rejected, say), but each will involve elements of the other to the point of making them sometimes indistinguishable: for example, even successful applications might include trade-offs in the kind of reasoning deployed to convince legal institutions of the applicants’ cause,3 and even judgments in favour of trans applicants will build on and reinforce societal notions of gender, and indeed humanity, which condition how reality becomes intelligible to us.4 Complex and non-linear the temporalities of struggle may be, but it seems clear to me that there is, in any case, a sense of struggle over time. One way in which this sense is rendered tangible within legal discourse on trans rights – and human rights more generally – is through the

*

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Topics covered in this chapter formed part of presentations at various conferences: The New Legal Temporalities (University of Kent, September 2016), Rights for the 21st Century? Exploring the Need for ‘New’ Human Rights (Tallinn University, September 2017)  and Human Rights and the Humanities:  Culture and Critique (Royal Irish Academy, December 2017). I  would like to thank all those who offered feedback during the discussions at these conferences, as well as several friends and colleagues who were kind enough to comment on drafts of this chapter: Andreas von Arnauld, Pieter Cannoot, Stefan Martini, Katharina Wommelsdorff and particularly Kay Lalor. J. M. Scherpe and P. Dunne, ‘Comparative Analysis and Recommendations’, in J. M. Scherpe (ed.), The Legal Status of Transsexual and Transgender Persons (Cambridge: Intersentia, 2015), pp. 618–624. See generally J. T. Theilen, I. Hassfurther and W. Staff, ‘Towards Utopia – Rethinking International Law’ (2017) 60 German Yearbook of International Law 315 at 331–332; and, specifically on queer rights, K. Lalor, ‘Making Different Differences: Representation and Rights in Sexuality Activism’ (2015) 23 Feminist Legal Studies 7 at 8. See D. Spade, ‘Resisting Medicine, Re/Modeling Gender’ (2003) 18 Berkeley Women’s Law Journal 15. I am thinking here primarily of regulation in the sense used by Judith Butler (as ‘making regular’); see J. Butler, ‘Gender Regulations’, Undoing Gender (New York and London: Routledge, 2004), p. 40 and, for the connection between gender and humanity, e.g. J. Butler, Gender Trouble: Feminism and the Subversion of Identity (New York and London:  Routledge, 1999), p.  xxiii; in the context of human rights, see C. Weber, Queer International Relations: Sovereignty, Sexuality and the Will to Knowledge (Oxford: Oxford University Press, 2016), pp. 118–119; for a more broadly Foucauldian approach, see e.g. E. Bjorge, ‘Sexuality Rights under the European Convention on Human Rights’ (2011) 29 Nordic Journal of Human Rights 158.

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notion of novelty:5 for example, Holning Lau’s contribution to this volume asks whether the human right to legal gender recognition is ‘new’.6 But what does this mean, and why does it matter? On a highly formalised approach, one might call any given judgment or declaration on human rights new in the sense that it did not exist prior to being announced – but that hardly seems interesting or worth arguing over. In a more loaded sense, one might attempt to place the substantive content of, say, the human right to legal gender recognition in relation to previous judgments or declarations. One might propose a nuanced taxonomy of, for example, affirmation, reformulation, extension and innovation.7 But why do so, and why imbue the relation between different legal norms with the temporal dimension of novelty – all the more so when the complexity of rights’ development over time casts doubt on any simple answer as to a right’s novelty or lack thereof? It is this question that I would like to pursue in this brief comment by reference to the example of trans rights: my aim is to provoke a shift in perspective from the question of novelty as such to the effects of presenting the right to legal gender recognition as new (or not new). I will focus, in particular, on the way in which representations of temporality relate to the way in which trans persons are constituted as subjects of human rights law by presenting certain understandings of gender and humanity as unquestionably ‘true’. As Judith Butler puts it, human rights are ‘always in the process of subjecting the human to redefinition and renegotiation’,8 but any given understanding of the human is bolstered and legitimated in various ways: my argument is simply that temporal rhetoric can be one of them.9 Succinctly put, I am not interested in establishing truth about novelty (or lack thereof), but rather in how novelty (or lack thereof) establishes truth about gender. I will leave aside other effects of temporal rhetoric, such as its relation to the possible retroactivity of legal norms.10 I begin with an analysis of the case law of the ECtHR on the right to legal gender recognition, which provides a prime example not only of trans persons being admitted into the category of the ‘human’ on narrow terms, but also of temporal rhetoric as a way of legitimising the ECtHR’s approach. Here, the right to legal gender recognition is presented as ‘new’ in the sense of newly found truth, part of a progress narrative which presents the boundaries of the ‘human’ as closed even as it reconstitutes them (Section 15.2). In other instances, often in the course of advocacy for trans rights, a diametrically opposed form of temporal rhetoric is found: trans rights are presented as pre-existing rather than new. While understandable as a strategy within legal reasoning, this move leads to a depoliticised understanding of human rights and, again, the constitution of static boundaries of the ‘human’ (Section 15.3). I therefore conclude that, in order to engage with trans rights in a way that maximises the space of emancipatory possibility, we should treat both forms of temporal rhetoric with caution. Instead, I will turn back to the

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Often building on Alston’s famous call for quality control for ‘new’ rights: P. Alston, ‘Conjuring Up New Human Rights: A Proposal for Quality Control’ (1984) 78 American Journal of International Law 607. H. Lau, in this volume, p. 193. F. Mégret, ‘The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?’ (2008) 30 Human Rights Quarterly 494. J. Butler, ‘On the Limits of Sexual Autonomy’, Undoing Gender (New York and London: Routledge, 2004), p. 33. Susan Marks calls this ‘narrativization’; for this and other forms of legitimation through the lens of ideology critique, see S. Marks, The Riddle of All Constitutions:  International Law, Democracy, and the Critique of Ideology (Oxford:  Oxford University Press, 2000), pp. 19–22; see also ibid., pp.  10–11 for the connection between meaning and power. Though this, too, is a relevant aspect in the case of trans rights: see ECtHR, Grant v. the United Kingdom (Appl. no. 32570/03), judgment, 23 May 2006, paras. 41–42.

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idea of a complex and non-linear struggle for human rights – a struggle with no clear end-point and no clear, unquestioned understanding of the ‘human’. On this approach, the point is not to establish whether or not trans rights are ‘new’, but rather how we can continuously rethink them in such a way as to render them as inclusive as possible (Section 15.4).

15.2 Emphasising Novelty: The Case Law of the ECtHR The ECtHR’s acknowledgement of gender identity rights took some time to develop. In judgments spanning over a decade, it began by insisting repeatedly that lack of legal gender recognition does not constitute a human rights violation.11 It was not until 2002, in the landmark judgment of Christine Goodwin v. the United Kingdom,12 that it changed its approach. Now arguing in favour of the trans applicant, the ECtHR made reference  – as other courts have done in this context13  – to broad principles or what Lau calls ‘basic rights’ from which gender identity rights can be derived.14 In particular, it argued in a crucial and much-quoted passage that ‘the very essence of the Convention is respect for human dignity and human freedom’ and that for the right to private life, in particular, ‘the notion of personal autonomy is an important principle underlying the interpretation of its guarantees’.15 In light of its previous judgments on the issue, however, it was also clear that the interpretation of these principles in Goodwin constituted a paradigm shift of sorts, an instance of the ‘reversible aspect of the law’.16 I will mostly leave aside the technical legal arguments that the Court used to justify its change of interpretation – in particular, the role assigned to precedent, evolutive interpretation, and evolving European and international consensus – and instead foreground its temporal rhetoric. A key passage in that regard goes as follows: In the twenty first century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy requiring the lapse of time to cast clearer light on the issues involved.17

By referring to the newly begun twenty-first century and connecting its new reasoning to images of ‘clearer light’, the ECtHR invokes a sense of new-found enlightenment.18 This kind of rhetoric has been described as ‘ascending periodisation’: two periods are distinguished within legal development – separated, in this case, by the dawn of a new millennium – and the more recent 11

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ECtHR, Rees v. the United Kingdom (Appl. no. 9532/81), judgment, 17 October 1986; ECtHR, Cossey v. the United Kingdom (Appl. no. 10843/84), judgment, 27 September 1990; ECtHR, Sheffield and Horsham v. the United Kingdom (Appl. nos. 22985/93 and 23390/94), judgment, 30 July 1998. ECtHR, Christine Goodwin v. the United Kingdom (Appl. no. 28957/95), judgment, 11 July 2002. E.g. Supreme Court of India, National Legal Services Authority v. Union of India and others, Writ Petition (Civil) No. 400 of 2012, e.g. paras. 20, 68 and 74 (and quoting the ECtHR passage mentioned above at para. 32); German Federal Constitutional Court, Decision of 11 January 2011, BVerfGE 128, 109, at 124. Lau, in this volume, p. 194. ECtHR, Christine Goodwin v. the United Kingdom, para. 90; self-determination is cited by the Court in van Kück v. Germany (Appl. no. 35968/97), judgment, 12 June 2003, para. 73. C. J. Greenhouse, ‘Just in Time: Temporality and the Cultural Legitimation of Law’ (1989) 98 Yale Law Journal 1631 at 1643. ECtHR, Christine Goodwin v. the United Kingdom, para. 90 (emphasis added). Goodwin is not a stand-alone case in this regard; see, for example, the recent French law which amends the civil code to make provision for legal gender recognition, entitled Law for the Modernisation of Justice for the TwentyFirst Century (Loi no. 2016-1547 du 18 novembre 2016 de modernisation de la justice du XXIe siècle); see also, more generally on the pernicious effects of claiming enlightenment in the context of global queer politics, Weber, Queer International Relations, pp. 111 and 135.

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is described in more favourable terms.19 The time was out of joint, but now it claims to have found its remedy. With the development vis-à-vis its previous judgments thus declared, the ECtHR concluded that lack of legal gender recognition constitutes a violation of, inter alia, the right to private life.20 In light of this result, Goodwin is largely celebrated as a major step forward in the legal acknowledgement of gender identity rights  – and rightly so. However, it also evinced significant limitations, and my argument is that these are not unrelated to the temporal rhetoric just discussed. The ascending periodisation which it employs builds up a historical teleology that aims to legitimise its new, henceforth enlightened stance as what David Valentine has termed a narrative of ‘coming-to-truth’,21 in which a certain development is presented in such a way as to constitute the final step necessary (rather than, say, as part of an ongoing and non-linear process). Since the truth of the twenty-first century has already been discovered – so the story goes – there is no need for further revision. Indeed, Sir Nicolas Bratza, former president of the ECtHR, has opined extra-judicially that, with Goodwin, ‘[t]he long road to establishing the Convention rights of transsexuals … was at last at an end’.22 Many would disagree with this assessment:  among other things, several European states retain various oppressive preconditions to legal gender recognition which could be challenged by giving the right to legal gender recognition a broader scope than that in Goodwin. Yet that judgment decreed that the particulars of how legal gender recognition should be granted remain within the states parties’ margin of appreciation,23 thus limiting its transformative potential. The ECtHR’s narrative of coming-to-truth as coming-to-an-end was borne out in its subsequent judgments, which have progressed little since 2002.24 Accordingly, only some trans persons have been admitted into the category of the ‘human’ as the ECtHR conceives of it – others, such as those who do not view their gender identity in terms of a mental illness25 – have been actively excluded from it.26 The ECtHR’s temporal rhetoric helps to legitimate this state of affairs: even

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T. Altwicker and O. Diggelmann, ‘How is Progress Constructed in International Legal Scholarship?’ (2014) 25 European Journal of International Law 425 at 432. ECtHR, Christine Goodwin v. the United Kingdom, para. 93. D. Valentine, Imagining Transgender: An Ethnography of a Category (Durham, NC and London: Duke University Press, 2007), p.  245; see generally on grand narratives in the context of queer rights K. Lalor, ‘Encountering the Past: Grand Narratives, Fragmented Histories and LGBTI Rights “Progress”’ (2019) 30 Law and Critique 24–25; and for human rights as a whole, see B. Authers and H. Charlesworth, ‘The Crisis and the Quotidian in International Human Rights Law’ (2013) 44 Netherlands Yearbook of International Law 19 at 26. N. Bratza, ‘The Christine Goodwin Case. The Long Road to Transsexual Rights in the United Kingdom’ (2014) 34 Human Rights Law Journal 245 (emphasis added). I have criticised this spatial metaphor and its limits in J. T. Theilen, ‘The Long Road to Recognition:  Transgender Rights and Transgender Reality in Europe’, in G. Schreiber (ed.), Transsexualität in Theologie und Neurowissenschaften:  Ergebnisse, Kontroversen, Perspektiven (Berlin and Boston: de Gruyter, 2016), p. 373. ECtHR, Christine Goodwin v. the United Kingdom, para. 93. See ECtHR, Parry v. the United Kingdom (Appl. no. 42971/05), decision, 28 November 2006; ECtHR, Stella Nuňez v. France (Appl. no. 18367/06), decision, 27 May 2008; and ECtHR, Hämäläinen v. Finland (Appl. no. 37359/09), judgment, 16 July 2014, none of which found a violation. ECtHR, A.P., Garçon and Nicot v. France (Appl. nos. 79885/ 12, 52471/13, 52596/13), judgment, 6 April 2017, declared that sterilisation is not a permissible precondition for legal gender recognition, but rubber-stamped other preconditions such as a medical diagnosis or medical examination. See most recently D. A. Gonzalez-Salzberg, ‘An Improved Protection for the (Mentally Ill) Trans Parent: A Queer Reading of AP, Garçon and Nicot v France’ (2018) 81 Modern Law Review 526; and more generally J. T. Theilen, ‘Depathologisation of Transgenderism and International Human Rights Law’ (2014) 14 Human Rights Law Review 327. D. A. Gonzalez-Salzberg, ‘The Accepted Transsexual and the Absent Transgender:  A Queer Reading of the Regulation of Sex/Gender by the European Court of Human Rights’ (2014) 29 American University International Law Review 797.

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as it renders certain forms of gender intelligible, the progress narrative offered by the move into the enlightened twenty-first century reconstitutes the new boundaries of the ‘human’ as truth.

15.3 Against Novelty: The Focus on Pre- Existing Rights If the ECtHR’s presentation of the right to legal gender recognition as ‘new’ has exclusionary effects, then one option is to offer a counter-narrative which contests its temporal rhetoric. Holning Lau’s contribution to this volume can, I  think, be read in that light. Gender identity rights such as the right to legal gender recognition, according to him, are ‘only new in the sense that they are newly recognised aspects of existing rights’27 – but they are not truly new, for they can be derived from various ‘basic rights’ which are already uncontroversially recognised within human rights law.28 In a sense, this kind of derivation is performed by the ECtHR as well:  its conclusions in Christine Goodwin were, after all, based on an interpretation of the human right to private life as well as the invocation of broad principles such as human dignity and autonomy.29 What sets Lau’s account apart from that of the ECtHR is the use of differing temporal rhetoric to accompany his interpretations of basic rights, i.e. the denial of novelty as opposed to its invocation as part of a grand narrative of progress. This denial of novelty could even be heightened: consider, for example, the way in which George Letsas frames the process of interpretation as one of ‘moral discovery’. On his account, the ECtHR ‘discovers what … human rights always meant to protect’.30 Elsewhere, he clarifies that when the ECtHR finds a violation, this implies that ‘the complained-of behaviour has always constituted a violation, even when it was not considered to be so’.31 One might think of this as a kind of temporal rhetoric at the opposite end of the spectrum from the kind described in the preceding section: rather than building a narrative of novelty, the insistence on an ‘always’ valid interpretation makes the element of novelty fade entirely into the background, focusing instead on the interpretation of ‘pre-existing rights’.32 Paradoxically, this kind of temporal rhetoric may have a naturalising effect quite similar to that of the ECtHR’s narrative of coming-to-truth. Particularly against the background of queer theory, one cannot help but think of Eve Kosofsky Sedgwick’s phrase: the ‘commanding, atemporal adverb “always” ’.33 Specifically in response to Letsas, Ben Golder has further elaborated the discursive effects of this kind of assumed atemporality: he describes it as a ‘depoliticising move’ which presents human rights ‘as if there were some original principle or logic installed in the Convention’.34 Once again, then, we are faced with a kind of temporal rhetoric which

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Lau, in this volume, p. 193 (original emphasis). Ibid., p. 194. Above, note 15. G. Letsas, ‘The ECHR as a Living Instrument: Its Meaning and Legitimacy’, in A. Føllesdal, B. Peters and G. Ulfstein (eds.), Constituting Europe:  The European Court of Human Rights in a National, European and Global Context (Cambridge: Cambridge University Press, 2013), p. 125 (emphasis omitted). G. Letsas, ‘Strasbourg’s Interpretive Ethic:  Lessons for the International Lawyer’ (2010) 21 European Journal of International Law 509 at 530 (emphasis added). Lau, in this volume, p. 206. Where Letsas builds on Dworkin, Lau refers to Raz (p. 194); while thus clearly distinct in theory, Lau’s use of temporal rhetoric, I think, brings them into proximity. E. K. Sedgwick, ‘Paranoid Reading and Reparative Reading, or, You’re So Paranoid, You Probably Think this Essay Is about You’, Touching Feeling: Affect, Pedagogy, Performativity (Durham, NC: Duke University Press, 2002), p. 125 (emphasis added); see also Weber, Queer International Relations, p. 125. B. Golder, ‘On the Varieties of Universalism in Human Rights Discourse’, in P. Agha (ed.), Human Rights Between Law and Politics: The Margin of Appreciation in Post-National Contexts (London: Hart, 2017), p. 49.

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legitimises the interpretation advocated for in a manner which, by virtue of depoliticising it, impedes contestation. In some contexts this aspect of depoliticisation may appear welcome. The first report of Vitit Muntarbhorn, former United Nations Independent Expert on violence and discrimination based on sexual orientation and gender identity, provides an example. It is said to be ‘based on existing international human rights law and its interrelationship with … gender identity; there is no advocacy of new rights for particular groups’.35 Such a sweeping statement is explained by a glance at Muntarbhorn’s mandate, which referred only to the ‘implementation of existing international human rights instruments’ with regard to gender identity.36 Denying novelty thus relates to the institutional backdrop, and can be understood as an attempt to make Muntarbhorn’s conclusions seem more acceptable to the states which he addresses – all the more understandable in light of the many controversies surrounding the creation of a mandate dealing with sexual orientation and gender identity in the first place. Presumably, this kind of mindset is also what leads Holning Lau to claim that ‘the argument that gender recognition is a radically new right’ constitutes a ‘threat’ to the momentum in favour of broad legal gender recognition which he takes to be building across legal systems.37 As a strategic move within legal reasoning, then, the denial of novelty may be helpful in some contexts, particularly when faced with conservative and transphobic opposition; one might think of Spivak’s notion of ‘strategic essentialism’ as a conceptual backdrop.38 However, such an approach carries significant risks. It is telling that Spivak herself has disavowed the term ‘strategic essentialism’ because the element of strategy tends to be forgotten, and only essentialism remains.39 In Kay Lalor’s words, the reference to only timeless and abstract rights that are ‘disembedded from historical and temporal locations’ will ‘struggle to move beyond problematic and static representations’40 – it threatens to obscure questions of epistemic authority41 and to shift the focus away from contestation,42 from grass-roots struggles43 and from the voices of trans persons themselves.44 My point is not that we should avoid reference to ‘basic rights’ such as human dignity, freedom and autonomy entirely, but rather that over-focusing on a temporal narrative which emphasises the timelessness of their interpretations understands human rights as founded on a notion of the ‘human’ which, as Judith Butler puts it, ‘is already known, already defined’.45 35

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HRC, Report of the Independent Expert on Protection against Violence and Discrimination Based on Sexual Orientation and Gender Identity, 19 April 2017, UN Doc. A/HRC/35/36, para. 17 (emphasis added); in the meantime, the first report of the new independent expert, V. Madrigal-Borloz, is also available (HRC, Report of the Independent Expert on Protection against Violence and Discrimination Based on Sexual Orientation and Gender Identity, 11 May 2018, UN Doc. A/HRC/38/43). HRC, Resolution on Protection against violence and discrimination based on sexual orientation and gender identity, 15 July 2016, UN Doc. A/HRC/RES/32/2, para. 3(a) (emphasis added). Lau, in this volume, p. 206 (original emphasis). G. C. Spivak, In Other Worlds: Essays in Cultural Politics (Abingdon: Routledge, 1998), chapter 12. S. Danius, S. Jonsson and G. C. Spivak, ‘An Interview with Gayatri Chakravorty Spivak’ (1993) 20 boundary 2 24 at 35. Lalor, ‘Making Different Differences’, 12. See generally B. A. Ackerly, Universal Human Rights in a World of Difference (Cambridge: Cambridge University Press, 2008), particularly chapter 3. M. Waites, ‘Critique of “Sexual Orientation” and “Gender Identity” in Human Rights Discourse:  Global Queer Politics Beyond the Yogyakarta Principles’ (2009) 15 Contemporary Politics 137 at 153. D. Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law (New York: South End Press, 2011). V. Namaste, Invisible Lives: The Erasure of Transsexual and Transgendered People (Chicago: University of Chicago Press, 2000). Butler, ‘On the Limits of Sexual Autonomy’, p. 37.

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15.4 Outlook: Future Articulations of Human Rights Representations of temporality may have many different purposes and effects. In this chapter I have argued that they relate, inter alia, to the way in which trans persons are constituted as subjects of human rights law by presenting certain understandings of gender and humanity as unquestionably ‘true’. I have considered two different forms of temporal rhetoric: the presentation of the right to legal gender recognition as new in the sense of new-found enlightenment, the final step in a narrative of coming-to-truth; and, conversely, the denial of novelty which claims atemporal truth for its interpretations of pre-existing rights. While diametrically opposed on the surface – in the sense that they constitute opposing views as to whether the right to legal gender recognition is ‘new’ or not  – there are also manifold connections between these forms of temporal rhetoric. For one thing, they both serve to legitimise fixed and static understandings of the ‘human’ in ‘human rights’. For another, they are less mutually exclusive than one might at first assume. By way of an example, consider Lau’s argument that the right to legal gender recognition should not be considered new so as not to impede the ‘momentum’ in its favour which has ‘grown in recent years’:46 while invoking atemporality on one level (lack of novelty), this approach also involves a kind of progress narrative (momentum towards a fixed goal, a ‘teleological narrative of emancipation’47). This way of framing the issue thus makes simultaneous use of what Cynthia Weber has called ‘universal temporality’ and ‘progressive temporality’.48 I am reminded here of Carol Greenhouse’s description of the law’s ‘mythical dimension’: its ‘quality of being in time (in that it is a human product) but also out of time (where did it or does it begin or end?)’.49 This mythical dimension is paradigmatically in evidence within human rights law – marked by constant struggle and thus clearly a human product ‘in time’ and developing over time, but always pointing beyond the present in its promise of justice, and in that sense ‘out of time’. I labour the point because, while the interplay between different temporalities could perhaps provide a space for subversion and contestation, the mythical dimension of law instead provides an important legitimising factor for its ostensible objectivity – as Kay Lalor has put it, ‘law uses its own myth to deny the very subjectivity of that mythmaking process’.50 Both forms of temporal rhetoric discussed above contribute to this obfuscation.51 Both forms of temporal rhetoric may also relate to substantive claims which, to some, seem worthy of support  – broadening the scope of trans rights so as to break down exclusionary preconditions to legal gender recognition as Lau suggests, for example, seems to me to be an appropriate and indeed urgent task, all the more so in light of transphobic backlash in several countries. But any such orientation towards a certain goal does involve an orientation away from other possibilities.52 As I mentioned in the introduction, legal norms form part of the larger societal processes which shape our understanding of gender and humanity.53 The very notions

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Lau, in this volume, p. 206. Lalor, ‘Making Different Differences’, 8. Weber, Queer International Relations, p. 125; Weber’s perceptive analysis of Hilary Clinton’s ‘gay rights are human rights’ speech through this lens lays bare clear parallels to the discourse surrounding trans rights; her third, ‘historical’ form of temporality is arguably also in evidence, though not my focus here for lack of space. Greenhouse, ‘Just in Time’, 1640. Lalor, ‘Encountering the Past’, 25. See also Marks, The Riddle of All Constitutions, p. 20, citing similar forms of temporal rhetoric (venerable claims denying novelty and progressive claims invoking it) side by side as part of the legitimising strategy of narrativisation. See generally on orientation S. Ahmed, Queer Phenomenology (Durham, NC: Duke University Press, 2007). See above, note 4.

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of ‘transgender’ persons or ‘gender identity’ as distinct from sexual orientation, for example, are Western products with potentially hegemonic effects if invested with global reach within human rights law:54 they produce some identities while erasing others55 and ignore intersections with other lived experiences based, for example, on religion, class or caste.56 This is not to say that we should abandon these terms: they remain important signifiers for many trans people on a personal level and important tools in the struggle against cisnormativity on a political level. For all this, however, they do not exhaust the space of possible human subjectivities, and their blind spots should not be ignored. Against this backdrop, I would suggest that it is more productive to grapple with the complex and non-linear temporalities of the struggle for trans rights in a way which maximises the space for contestation, rather than reverting to forms of temporal rhetoric which chime with the law’s mythological dimension and help to simultaneously produce and naturalise subjects of human rights law.57 Even as we use human rights to intervene in political processes, we should remain alert to the exclusionary effects of any particular rights claim, aiming for ‘a rights politics that questions the very categories that it uses’.58 To speak once again with Judith Butler, ‘keeping our notion of the human open to a future articulation is essential to the project of international human rights discourse and politics’.59

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See generally J. Puar, ‘Rethinking Homonationalism’ (2013) 45 International Journal of Middle East Studies 336 at 338. The classic text here is Valentine, Imagining Transgender; for a specifically postcolonial take, see A. Dutta and R. Roy, ‘Decolonizing Transgender in India: Some Reflections’ (2014) 1 Transgender Studies Quarterly, 320; on the category of ‘gender identity’ in human rights discourse, see Waites, ‘Critique of “Sexual Orientation” and “Gender Identity” ’. The connection between non-Western identities and the contingency of Western categories is also highlighted, though in a different context, by H. Lau, ‘Law, Sexuality, and Transnational Perspectives’ (2013) 5 Drexel Law Review 479 at 484–488. For a critical view, see Weber, Queer International Relations, p. 137. See generally Butler, Gender Trouble, p. 3. Lalor, ‘Making Different Differences’, 22. Butler, ‘On the Limits of Sexual Autonomy’, p. 36.

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16 The Rights of Indigenous Peoples Everything Old Is New Again Dinah Shelton

16.1 Introduction An estimated 370 million indigenous people live in more than half the countries of the world, often inhabiting vulnerable ecosystems rich in resources. European colonisation decimated indigenous populations and resulted in extensive forced dispossession of indigenous ancestral lands. Remaining indigenous territories are now being taken or transformed by governments and private investors seeking to extract or convert natural resources to supply growing global demand. Instances of coerced assimilation, conflict, removal and even genocide continue to occur. Scholars and law-makers have long debated how to conceptualise and implement the human rights of indigenous peoples. An exclusive focus on equal individual rights and nondiscrimination ignores very real differences between indigenous peoples and others; many indigenous groups had pre-existing sovereignty and signed treaties to govern their external relations during the early period of contact with European powers. Claims of unique indigenous rights follow from this history, but they also flow from a specific indigenous world-view based on profound attachment to the land and territory. James Anaya and Benedict Kingsbury conclude that the law on the rights of indigenous peoples has come to be based on sui generis deviations from both traditional sovereignty and earlier approaches to self-determination.1 As this contribution will show, there is considerable evidence that indigenous peoples’ rights are unique in international human rights law, being focused on internal self-determination and ownership of their traditional lands and territories. It is generally accepted that the rights of indigenous peoples are a combination of the individual rights guaranteed to all persons and sui generis rights afforded to indigenous peoples, in particular internal self-determination, expanded notions of the right to property and territory, and control over natural resources. Various scholars have concluded that indigenous peoples are subjects of international law in their own right.2

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S. J. Anaya, Indigenous Peoples in International Law (Oxford: Oxford University Press, 2004), p. 8; B. Kingsbury, ‘Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law’, in P. Alston (ed.), Peoples’ Rights (Oxford: Oxford University Press, 2001), p. 69. C. J. Iorns, ‘Indigenous Peoples and Self-Determination:  Challenging State Sovereignty’ (1993) 24 Case Western Reserve Journal of International Law 199; R. L. Barsh, ‘Indigenous Peoples in the 1990s: From Object to Subject of International Law?’ (1994) 7 Harvard Human Rights Journal 33 at 33–35; Anaya, Indigenous Peoples in International Law, pp.  15–34; A. L. Parrish, ‘Changing Territoriality, Fading Sovereignty, and the Development of Indigenous Rights’ (2007) 31 American Indian Law Review 291 at 311.

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This contribution will examine the rights of indigenous peoples, reviewing relevant international texts, both binding and non-binding, as well as international jurisprudence and some recent national laws. Later sections will turn to an examination of the sui generis rights that are currently recognised. The chapter concludes that the rights of indigenous peoples are unique today and represent, in part, a return to the state-to-state or government-to-government relations originally applied.

16.2 Historical Evolution From the fifteenth and sixteenth centuries until today,3 legal scholars have debated the appropriate relationship between ‘newly discovered’ first peoples and colonising powers.4 Francisco de Vitoria recognised indigenous peoples as rational human beings, true owners of their lands with ‘dominion in both public and private matters’.5 European ‘discovery’ made no difference to this dominion, but Vitoria, while neither affirming nor entirely condemning it,6 acknowledged the argument that Native Americans were ‘unfit to found or administer a lawful state up to the standard required by human and civil claims’, and therefore Spain could administer their territories.7 Vitoria also accepted the just war theory, whereby interference with Spanish efforts to travel, trade and proselytise violated jus gentium and could allow lawful conquest by Spain,8 which could then govern indigenous peoples ‘partly as slaves’.9 By violating jus gentium, the indigenous peoples lost all capacity of being recognised as equal bearers of rights under the law of nations. In practice, colonisers and indigenous peoples initially acted as separate sovereigns governed by international law. Europeans and indigenous peoples often negotiated trade, war and land rights through treaties.10 During the nineteenth century many states and scholars began retracting recognition of the sovereignty of indigenous peoples and instead adopted the doctrine of discovery.11 The ‘Marshall Trilogy’ of judgments in the US held that Native Americans retained rights of occupancy and self-governance over their reserved territories, based on prior treaties and limited

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L. A. Miranda, ‘Uploading the Local:  Assessing the Contemporary Relationship between Indigenous Peoples’ Land Tenure Systems and International Human Rights Law Regarding the Allocation of Traditional Lands and Resources in Latin America’ (2008) 10 Oregon Review of International Law 419, citing R. Niezen, The Origins of Indigenism: Human Rights and the Politics of Identity (Berkeley: University of California Press, 2003), pp. 4–5. See generally A. Collard (ed.), Bartolomé De Las Casas, History of the Indies:  Selections (New  York:  Harper and Row, 1971); Francisco De Vitoria, De Indis et De Ivre Belli Relectiones, ed. by Ernest Nys (Washington DC: Carnegie Institution of Washington, 1917). De Vitoria, De Indis et de Ivre Belli, pp. 127–128. Ibid., p. 160. Ibid., p. 161. Ibid., p. 156. For a more extensive treatment of early legal history, see Anaya, Indigenous Peoples in International Law, pp. 1–48. A. Anghie, ‘Francisco de Vitoria and the Colonial Origins of International Law’ (1996) 5 Social and Legal Studies 321; E. Cirkovic, ‘The Myth of the Inkarri: Colonial Foundations in International Law and Indigenous Struggles’ (2006) 39 York Centre for International and Security Studies Working Papers 7, available at https://ssrn.com/abstract=1431136. See generally A. Pagden and J. Lawrance (eds.), Vitoria, Political Writings (Cambridge: Cambridge University Press, 1991), pp. 231–327. Treaties between native communities and colonial authorities were also concluded in Africa. See P. G. McHugh, Aboriginal Societies and the Common Law (Oxford:  Oxford University Press, 2004); L. Hughes, Moving the Maasai: A Colonial Misadventure (Basingstoke: Palgrave Macmillan, 2006); B. Ibhawoh, Imperialism and Human Rights: Colonial Discourses of Rights and Liberties in African History (Albany: State University of New York Press, 2007), pp. 32–33. See generally, E. de Vattel, The Law of Nations (Philadelphia: Abraham Small, 1817).

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sovereignty.12 By the early twentieth century13 indigenous peoples were largely denied citizenship rights unless they assimilated into mainstream society. Within the League of Nations, international law began to recognise the rights of ethnic, linguistic and religious minorities, providing the foundation for decolonisation efforts following the Second World War, but indigenous peoples were largely excluded from this process.14 Despite this setback, the early advocacy of indigenous groups and their leaders ‘set in motion a series of developments that slowly advanced the recognition of indigenous peoples’ rights in international law’.15 At the regional level, periodic meetings of the independent American states discussed indigenous issues as early as 1922, first adopting a resolution that called for the study of indigenous languages and respect for archaeological monuments. In 1933 a resolution proposed an international meeting to examine the ‘problem of Native Americans’. Five years later another resolution acknowledged past injustices and called for protection as a form of reparation, in paternalistic terms common to the period. In 1948, the year the Organization of American States (OAS) was established, the participating states adopted the Inter-American Charter of Social Guarantees,16 Article 39 of which continued to view indigenous peoples as a ‘problem’ to be solved. With the founding of the United Nations, international law appeared to position itself against colonial doctrines, repudiating colonialism and racism, and recognising the right of selfdetermination. The principle was deemed, however, to extend only to an overseas colonial territory as a whole, ignoring pre-colonial enclaves of indigenous peoples existing within the colonial territories and colonising states.17 In 1949 the UN General Assembly recommended that the Economic and Social Council (ECOSOC) undertake a study on the condition of ‘aboriginal populations and other underdeveloped social groups of the American continent’ to improve their situation and foster more efficient use of their resources – but only if requested by the affected states, none of which made a request.18 Thereafter, the International Labor Organization (ILO) Convention No. 107, adopted in 1957, became the first international instrument devoted to this topic.19 It reflected concern about ‘the exploitation’ of indigenous (colonial) workers. With a clear focus on Africa, the ILO identified the need to protect indigenous peoples while they were 12

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The ‘Marshall Trilogy’ includes Worcester v. Georgia, 31 US 515 (1832); Cherokee Nation v. Georgia, 30 US 1 (1831); and Johnson v. M’Intosh, 21 US 543 (1823). See D. H. Getches, ‘Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law’ (1996) 84 California Law Review 1573 at 1577. No citizenship rights were granted in the USA until 1928 and no voting rights existed for Aborigines in Australia until 1962. S. J. Anaya, International Human Rights and Indigenous Peoples (Austin: Wolters Kluwer, 2009), pp. 4–7. W. T. Singel, ‘New Directions for International Law and Indigenous Peoples’ (2009) 45 Idaho Law Review 509 at 510. Inter-American Charter of Social Guarantees, reprinted in Pan American Union, International Conferences of the American States, Second Supplement, 1942–1954 (Washington DC: Pan American Union, 1958), p. 262. See UNGA, Resolution 1514 (XV) on Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960, UN Doc. A/4684; see also UNGA, Resolution 1541 (XV) on Principles which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called for Under Article 73e of the Charter, 15 December 1960, UN Doc. A/RES/1541 (correlating the application of self-determination to geographically separate territories). ECOSOC, Social Problems of the Aboriginal Populations and Other Under-developed Social Groups of the American Continent, 24 July 1950, UN Doc. E/SR.397. International Labour Organization (ILO), Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (ILO No. 107), Geneva, adopted 26 June 1957, in force 2 June 1959, 328 UNTS 247. A. Xanthaki, Indigenous Rights and United Nations Standards: Self-Determination, Culture and Land (Cambridge: Cambridge University Press, 2007), p. 49. The Convention refers to ‘integration’ in a manner suggesting assimilation, but its Art. 11 was the first binding instrument to include a provision on the rights of indigenous peoples to their lands.

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integrating into larger national societies. ILO 107 was thus basically an assimilationist instrument aimed at ameliorating the most abusive practices by colonial powers.20 Convention No. 107 was effectively replaced by Convention No. 169, adopted on 27 June 1989.21

16.3 Legal Instruments Today, indigenous rights are guaranteed in binding agreements overseen by treaty bodies, supplemented by non-binding authoritative texts and international jurisprudence. Most of these instruments were adopted relatively late in human rights law. 16.3.1 Treaties Neither of the 1966 International Covenants expressly mentions the rights of indigenous peoples, although both Covenants contain an identical Article 1 on the right of self-determination. The International Covenant on Civil and Political Rights (ICCPR)’s Article 27 adds a provision guaranteeing minority rights to individuals.22 In contrast, ILO Convention No. 169 concerning Indigenous and Tribal Peoples provides that ‘indigenous and tribal peoples shall enjoy the full measure of human rights and fundamental freedoms without hindrance of discrimination’. It calls for ‘special measures’ to safeguard the ‘persons, property, labour, cultures, and environment’ of the peoples concerned; and articulates a standard of ‘due regard’ for the ‘customs and customary law’ of indigenous and tribal peoples.23 Article 6 provides that state governments ‘shall … consult the peoples concerned … whenever consideration is being given to legislative or administrative measures which may affect them directly’.24 Other treaties contain brief references to the rights of indigenous peoples. Explicit mention of the rights of indigenous peoples is found in the UN Convention on the Rights of the Child (1990), which is noteworthy in making a distinction between indigenous peoples and minorities.25 Although indigenous peoples are not mentioned explicitly in the UN Convention on the Elimination of All Forms of Racial Discrimination (ICERD),26 the Committee on the Elimination of Racial Discrimination (CERD) has devoted attention to issues of indigenous peoples when examining state party reports, noting the scope of the problems being confronted.27 20

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See L. Swepston, The Foundations of Modern International Law on Indigenous and Tribal Peoples, Volume I: Basic Policies and Land Rights (Leiden: Brill Nijhoff, 2015). The broader scope of the Convention was aimed at ensuring that its protections extended to colonial powers like France, which treated many of its colonies as integral parts of the national state and not as separate dependent territories. International Labour Organization Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention No. 169), Geneva, signed 27 June 1989, in force 5 September 1991, 1650 UNTS 383, Art. 3. International Covenant on Civil and Political Rights (ICCPR), New York 16 December 1966, in force 23 March 1976, 999 UNTS 171, Art. 27. ILO Convention No. 169, Arts. 4–5, 8. See also UNGA, Resolution 61/295 on Declaration on the Rights of Indigenous Peoples (UNDRIP), 13 September 2007, UN Doc. A/RES/61/295, Art. 3 (‘Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’). Convention on the Rights of the Child (CRC), New York, 20 November 1989, in force 2 September 1990, 1577 UNTS 3, Art. 30 refers to ethnic, religious or linguistic minorities or persons of indigenous origin. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), New  York, 21 December 1969, in force 4 January 1969, 660 UNTS 1. See the decisions by the Committee on the Elimination of Racial Discrimination (CERD), Decision 1(69) on Suriname, 18 August 2006, UN Doc. CERD/C/DEC/SUR/5; Decision 1(68) on United States of America, 11 April 2006, UN Doc. CERD/C/USA/DEC/1; Decision 1(67) on Suriname, 1 November 2005, 7UN Doc. CERD/C/DEC/

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Regional instruments are also largely silent. No provision on the topic of indigenous rights exists in the European Convention on Human Rights and Fundamental Freedoms28 or in any of its sixteen Protocols. The African Charter on Human and Peoples Rights29 contains an entire section on peoples’ rights in general, without specific mention of indigenous peoples, but its Protocol on the Rights of Women in Africa refers to women’s indigenous knowledge systems in Article 18(2)(c). The Inter-American Democratic Charter, Article 9,30 calls for, inter alia, the elimination ‘of all forms of discrimination’ and ‘the promotion and protection of human rights of indigenous peoples’ in order to strengthen democracy and citizen participation. 16.3.2 Non-binding Instruments Early instruments like the UN’s Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992)31 affirm the rights of individuals but not those of groups. In a 2000 report on the rights of indigenous peoples, the Inter-American Commission on Human Rights (IAComHR) was critical, concluding that an approach to the rights of indigenous peoples via the concepts of ‘minorities’ or ‘prohibition on discrimination’, while the only mechanism in some cases, is incomplete and reductionist, and therefore inadequate … as it fails to recognize the nature and complexity of indigenous peoples.32

The landmark 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP)33 reflects a major shift in thinking away from the individual rights approach. As first stated in ILO Convention No. 169, UNDRIP contains express references to ‘indigenous peoples’ and ‘self-determination’, and affirms rights to traditional lands, economic development, education, family and child welfare, self-government, culture, religion and expression. Key provisions call for states to obtain ‘free, prior and informed consent before adopting and implementing legislative or administrative measures’ affecting indigenous peoples. Other non-binding texts include a 1994 European Parliament resolution on Action Required Internationally to Provide Effective Protection for Indigenous Peoples,34 a 1972 resolution of the Inter-American Commission on Human Rights calling for ‘special protection for indigenous populations [as] a sacred commitment of the States’35 and an Organization for Security and Co-operation in Europe (OSCE) text of 1992 on ‘special problems’ of indigenous people in

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SUR/4; Decision 3(66) on Suriname, 27 April 2005, UN Doc. CERD/C/DEC/SUR/1; Decision 3(47) on Papua New Guinea, 25 March 1993, UN Doc. CERD/C/SR.983. European Convention for the Protection of Human Rights and Fundamental Freedoms (as amended by Protocols No. 11 and No. 14), Rome, 4 November 1950, in force 1 June 2010, 213 UNTS 221. African Charter on Human and Peoples’ Rights, Nairobi, signed 27 June 1981, in force 21 October 1986, 21 ILM 58. Inter-American Democratic Charter, adopted by the OAS General Assembly at its special session in Lima, Peru, 11 September 2001, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/ Ser,L/V/I.4 rev.13, #0 June 2010, p. 144. UNGA, Resolution 47/135 on Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 18 December 1992, UN Doc. A/Res/47/135. IAComHR, The Human Rights Situation of the Indigenous People in the Americas, 20 October 2000, OAS Doc. OEA/Ser.L/V/II.108 (Doc. 62), see the Introduction. UNGA, UNDRIP. European Parliament, Resolution on Action Required Internationally to Provide Effective Protection for Indigenous Peoples, 9 February 1994, Doc. PV 58(II) (1994). IAComHR, Resolution on Special Protection for Indigenous Populations, 28 December 1972, OAS Doc. OEA/Ser.P/ AG/doc. 305/73, rev. 1, pp. 90–91.

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exercising their rights.36 Finally, in June 2016 the General Assembly of the Organization of American States adopted the American Declaration on the Rights of Indigenous Peoples.37 Like the UNDRIP, this text took decades to complete; it reiterates many of the principles and norms contained in the UN Declaration but also adds new provisions, including one specifically on the rights of indigenous peoples in voluntary isolation and first contact. 16.3.3 International Jurisprudence Despite the dearth of textual references, global and regional bodies38 have addressed indigenous rights in numerous cases and studies, in the process considerably developing the law.39 They have applied concepts of self-determination40 and the rights to culture and property, among others, to protect indigenous peoples. The Human Rights Committee has interpreted and applied Articles 1 (self-determination) and 27 (minority rights) ICCPR in reviewing state reports and individual communications on the guaranteed rights.41 For its part, the CERD has issued two relevant General Recommendations:  General Recommendation XXI on Self-determination42 and General Recommendation XXIII on Indigenous Peoples.43 The first recommendation was drafted despite the fact that self-determination is not explicitly mentioned apart from in the Preamble, which simply cites General Assembly Resolution 1514 (XV) of 1960 on decolonisation. General Recommendation XXI distinguishes internal and external self-determination, the first being the right of peoples to pursue their development without outside interference. In contrast, external self-determination, meaning unilateral secession, is not viewed as a legal right. At the regional level, inter-American human rights bodies have developed a unique jurisprudence that gives prominence to the collective and individual rights of indigenous peoples,44 centring on a broadly interpreted right to property, defined in cultural and religious as well as economic terms, as guaranteed by the American Declaration on the Rights and Duties of 36

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Commission on Security and Co-operation in Europe (CSCE), Helsinki Document 1992: the Challenges of Change, 10 July 1992, Chapter  6, para. 29, reprinted in UNGA, Letter from the Chargé d’affaires a.i. from the Permanent Mission of Finland, 3 August 1992, UN. Doc. A/47/361, Annex. OAS GA, Resolution 2888 (XLVI-O/16) on American Declaration on the Rights of Indigenous Peoples, 15 June 2016, OAS Doc. OEA/Ser.PAG/doc.5557/16. For the African system, see e.g. African Commission on Human and People’s Rights (AComHPR), Social and Economic Rights Action Center and Center for Economic and Social Rights v. Nigeria, Communication No. 155/96, 27 May 2002. See E. Tramontana, ‘The Contribution of the Inter-American Human Rights Bodies to Evolving International Law on Indigenous Rights over Lands and Natural Resources’ (2010) 17 International Journal on Minority and Group Rights 241; M. Barelli, ‘The Interplay between Global and Regional Human Rights Systems in the Construction of the Indigenous Rights Regime’ (2010) 32 Human Rights Quarterly 951; D. C. Baluarte, ‘Balancing Indigenous Rights and a State’s Right to Develop in Latin America: The Inter-American Rights Regime and ILO Convention 169’ (2004) 4 Sustainable Development Law and Policy 9 at 10; A. Page, ‘Indigenous Peoples’ Free Prior and Informed Consent in the Inter-American Human Rights System’ (2004) 4 Sustainable Development Law and Policy 16 at 16. See B. Kingsbury, ‘Reconstructing Self-Determination: A Relational Approach’, in P. Aikio and M. Scheinin (eds.), Operationalizing the Right of Indigenous Peoples to Self-Determination (Turku:  Institute for Human Rights, Abo Akademi University, 2000), p. 19. HRC, Länsman et al v. Finland, Communication No. 1023/2001, 17 March 2005, UN Doc. CCPR/C/83/D/1023/2001; see also HRC Chief Bernard Ominayak and the Lubicon Lake Band v. Canada., Communication No. 167/1984, 26 March 1990, UN Doc. A/45/40. CERD, General Recommendation No. XXI on the Right to Self-determination, contained in Report of the CERD Committee, 30 September 1996, UN Doc. A/51/18, p. 125. CERD, General Recommendation No. XXIII on the Rights of Indigenous Peoples, contained in Report of the CERD Committee, 1997, UN Doc. A/52/18, p. 122. See Barelli, ‘The Interplay between Global and Regional Human Rights Systems’, 951–979; Baluarte, ‘Balancing Indigenous Rights’, 10.

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Man (American Declaration)45 and the American Convention on Human Rights (American Convention).46 In Yanomami v.  Brazil,47 followed by a country report on Ecuador,48 the Commission expanded on the duties of the state towards indigenous peoples, especially in the context of development projects. In 2004, in Maya Indigenous Community of the Toledo District v. Belize,49 the Commission affirmed that states must effectively demarcate indigenous peoples’ lands. The Inter-American Court has also emphasised the importance to indigenous peoples of their lands. In the landmark50 2001 case of Mayagna (Sumo) Awas Tingni Community v.  Nicaragua (Awas Tingni),51 the Court, relying on the right to property in the American Convention on Human Rights, looked to the indigenous groups’ own system of allocating land as a source of law.52 It held that land ‘must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival’.53 Even in the absence of ‘real title’, indigenous peoples’ customary law of land tenure could give rise to property rights pursuant to the Convention. Sawhoyamaxa Indigenous Community v.  Paraguay54 for the first time involved the issue of third-party ownership rights to the lands in question, pursuant to a bilateral investment treaty. The Court affirmed prior holdings before adding that members of indigenous peoples who have unwillingly left their traditional lands, or lost possession of them, maintain property rights thereto even though they lack legal title, unless the lands have been lawfully transferred to third parties in good faith. Moreover, members of indigenous peoples who did so lose their lands to innocent third parties are entitled to restitution thereof or to obtain other lands of equal size and quality.55 Outside the Americas, the African Commission on Human and People’s Rights’ Endorois case relied on and thereby legitimated the developing consensus on the relationship between the identity of indigenous peoples and their unique association with a specific territory that is relevant to their survival. In general, regional and global jurisprudence could be characterised ‘as representing a bold and creative attempt at interpreting traditional human rights norms through the lens of historically excluded and marginalized groups’.56 45

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OAS GA, Resolution XXX on American Declaration of the Rights and Duties of Man (American Declaration), 2 May 1948, reprinted in (1949) 43 American Journal of International Law Supplement 133. The American Declaration is utilised as a source of international legal obligations for member states of the OAS by both the Commission and the Court. See IAComHR, Basic Document Pertaining to Human Rights in the Inter-American System: Introduction, available at www.cidh.oas.org/basicos/english/Basic1.%20Intro.htm. American Convention on Human Rights (American Convention), San José, 22 November 1969, in force 18 July 1978, OAS Treaty Series No. 36, 1144 UNTS 123. IAComHR, Yanomami v. Brazil, 5 March 1985, Case No. 7615, Resolution No. 12/85, OAS Doc. OEA/Ser.L/V/II.66, Doc. 10 rev. 1. IAComHR, Report on the Situation of Human Rights in Ecuador, 24 April 1997, OAS Doc. OEA/Ser.L/V/II.96, Doc. 10 rev. 1. IAComHR, Maya Indigenous Community of the Toledo District v. Belize, 12 October 2004, Case No. 12.053, Report No. 40/04, OAS Doc. OEA/Ser.L/V/II.122, Doc. 5 rev. 1. See e.g. S. J. Anaya and C. Grossman, ‘The Case of Awas Tingni v. Nicaragua: A New Step in the International Law of Indigenous Peoples’ (2002) 19 Arizona Journal of International and Comparative Law 1. IACtHR, Awas Tingni Community v. Nicaragua (Merits, Reparations and Costs), 31 August 2001, Ser. C, No. 79. Ibid., para. 151. Ibid. IACtHR, Sawhoyamaxa Indigenous Community v. Paraguay (Merits, Reparations and Costs), 29 March 2006, Ser. C, No. 146. Ibid. See also IACtHR, Yakye Axa Indigenous Cmty v. Paraguay (Merits, Reparations and Costs), 17 June 2005, Ser. C, No. 125. K. Sing’Oei and J. Shepherd, ‘In Land We Trust:  The Endorois’ Communication and the Quest for Indigenous Peoples’ Rights in Africa’ (2010) 16 Buffalo Human Rights Law Review 57. See also HRC, International Workshop

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16.4 Application of General Human Rights Norms All the special texts on indigenous rights expressly recognise that every indigenous person enjoys the civil, political, economic, social and cultural rights guaranteed to all individuals.57 Embracing common individual human identity is the core of the human rights provisions of the United Nations Charter (UN Charter) and the Universal Declaration of Human Rights (UDHR), whose language emphasises the shared identity of all humans: equality in dignity and rights.58 The UN Charter and UDHR, as well as the later Covenants on Human Rights,59 also explicitly recognise the existence of different peoples entitled to self-determination.60 Recognising both individual and group diversity as valuable, human rights law establishes uniform rights to allow the full development of each individual’s batch of identities that together constitute a unique person. Further, the law also recognises that many human rights are exercised in a group or social setting and that the group itself may require protection for its continued existence. In the case of indigenous peoples, these basic elements have led to reformulating some of the individual rights guaranteed in international texts in order to take into account the specific situation and needs of indigenous peoples. In particular, equality and non-discrimination, foundational principles in international human rights law, are guaranteed in all the treaties and reaffirmed in UNDRIP Article 2, but always taking into account the specific situations of indigenous peoples. All human rights bodies accept that, in international law, the unequal treatment of persons in unequal conditions is necessary to take relevant differences into account. To treat indigenous peoples ‘equally’ thus requires recognition of their distinct culture, spirituality, languages, forms of land tenure and situation within larger society.61 In its Saramaka judgment, the InterAmerican Court rejected the state’s argument ‘that it would be discriminatory to pass legislation that recognises communal forms of land ownership’, finding the argument to be without merit.62 As Sieder puts it: ‘equality before the law must encompass cultural diversity and difference, or it risks being discriminatory by failing to recognise that cultural diversity’.63 But since the founding of the UN, debates about the relationship between individual human rights protection and claims of collective rights have often been contentious, and some states continue to reject the very concept of group rights.64 ICCPR Article 27 reflects the approach of

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on the Draft Declaration the Rights of Indigenous Peoples, 29 November 2005, UN Doc. E/CN.4/2005/WG.15/ CRP.1: ‘The experts underlined that the draft Declaration does not aim to propose new principles of international law, but builds upon and affirms existing ones, which have been recognized in international jurisprudence, international instruments, as well as in customary law.’ See Art. 1 UNDRIP. Art. 1 UDHR (‘All human beings are born free and equal in dignity and rights’). Art. 7 states that ‘All are equal before the law and are entitled without any discrimination to equal protection of the law.’ The UN Charter repeatedly refers to ‘universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.’ Preamble, Arts. 1, 2, 55, 56 UN Charter. ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR), New  York, 16 December 1966, in force 3 January 1976, 993 UNTS 3. Art. 1 UN Charter; Art. 1 ICESCR; Art. 1 ICCPR. A. Dulitzky, ‘When Afro-Descendants Became Tribal Peoples: The Inter-American Human Rights System and Rural Black Communities’ (2010) 15 UCLA Journal of International Law and Foreign Affairs 29 at 73. IACtHR, Saramaka People v. Suriname (Preliminary Objections, Merits, Reparations, and Costs), 28 November 2007, Ser. C, No. 172, para. 103. R. Sieder, Customary Law and Democratic Transition in Guatemala (London:  University of London, School of Advanced Study, Institute of Latin American Studies, 1997), p. 53. J. Gibson, ‘The UDHR and the Group: Individual and Community Rights to Culture’ (2008) 30 Hamline Journal of Public Law and Policy 285.

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individual rights, while an increasing number of conventions and declarations address claims for the protection of specific aspects of collective identity, including for indigenous peoples. The Human Rights Committee recognises that Article 27 can serve to protect the cultural survival of indigenous peoples as collectives.65 Although indigenous peoples have increasingly been successful at asserting cultural rights under Article 27 before the Human Rights Council and in domestic forums,66 most indigenous representatives insist that they represent peoples and not national minorities.67 Over time, the IAComHR has shifted from an approach treating indigenous peoples as minority groups within states to expanding on the specific duties of the state towards indigenous peoples. The Commission has increasingly placed emphasis on the procedural rights of information, participation and redress. Later cases have added substantive protections and have developed the ‘special legal protections’ for indigenous peoples that emerge as sui generis rights, among them an expanded right to property. The right to property, as included in the UDHR and regional human rights instruments, has traditionally been seen as an individual right, but the Inter-American Commission and Court have recognised the right to property in such a way as to include indigenous collective ownership.68 First, the Court’s judgment in Awas Tingni reaffirmed the Commission’s jurisprudence that indigenous peoples are entitled to special legal protection because of severe past discrimination. Second, the Court applied ICCPR Article 27 and ILO Convention 169 as lex specialis, based on Articles 29(b) and 64 of the American Convention, to imply that international law guarantees rights specific to the needs of indigenous people. Third, the judgment recognised that the collective land rights of indigenous peoples extend to the resources on that land. Finally, the Court reaffirmed that a government’s failure to act to protect indigenous rights may be as much a violation as direct governmental action. As already stated, regional and global jurisprudence could be generally characterised ‘as representing a bold and creative attempt at interpreting traditional human rights norms through the lens of historically excluded and marginalised groups’.69 Not only property rights,70 but also cultural rights acquire unique aspects when applied to indigenous people.71 More boldly, indigenous rights may be understood as new and unique in human rights law due in large part to the efforts of indigenous peoples themselves to have a declaration adopted by the UN.72

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HRC, CCPR, General Comment No. 23:  Article 27 (Rights of Minorities), UN Doc. CCPR/C/21/Rev.1/Add.5, para. 50. See e.g. Japan, Sapporo District Court, Kayano v. Hokkaido Expropriation Committee, 27 March 1997, 1598 Hanrei jiho 33, 938 Hanrei Times 75, translated in (1999) 38 ILM 394 (finding that Art. 27 provided duties for the government of Japan to affirmatively recognise the Ainu as indigenous peoples). Anaya, Indigenous Peoples in International Law, p. 133. IACtHR, Moiwana Vill. v. Suriname (Preliminary Objections, Merits, Reparations and Costs), 15 June 2005, Ser. C, No. 124, para. 131. Sing’Oei and Shepherd, ‘In Land We Trust’, 57. See also HRC, International Workshop on the Draft Declaration the Rights of Indigenous Peoples, 29 November 2005, UN Doc. E/CN.4/2005/WG.15/CRP.1: ‘The experts underlined that the draft Declaration does not aim to propose new principles of international law, but builds upon and affirms existing ones, which have been recognized in international jurisprudence, international instruments, as well as in customary law.’ See IACtHR, Awas Tingni Community v. Nicaragua, para. 146. HRC, General Comment 23: The Rights of Minorities (Art. 27), para. 7; see also, HRC, Chief Bernard Ominayak and the Lubicon Lake Band v. Canada. Kingsbury, ‘Reconstructing Self-Determination’.

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16.5 Unique Rights of Indigenous Peoples Indigenous rights can either be enfolded into existing human rights or ‘characterised as a form of human rights “exceptionalism” ’;73 the latter seems to reflect more accurately the reality of indigenous peoples as self-defining, historically and territorially linked groups, whose current problems have been produced by conquest and colonisation, marginalisation and discrimination. Human rights law has responded to this context by shifting from an exclusive focus on individual rights towards the acknowledgement of collective rights of indigenous peoples. This focus can be viewed at least in part as a response to the historic injustices suffered and continuing to be faced by indigenous peoples. This ‘reparative’ aspect of the unique rights has been emphasised mostly within the Inter-American context. The Inter-American Commission in 1971 found that indigenous peoples were in need of special legal protection due to the history of severe discrimination against them. A year later the Commission resolved that: ‘for historical reasons and because of moral and humanitarian principles, special protection for indigenous populations constitutes a sacred commitment of the states’.74 Since then, the notion of a special status for indigenous peoples with corresponding special obligations of states has remained a consistent theme of Inter-American jurisprudence,75 based on a finding that no other sector has suffered as much from prejudice and violence as have indigenous communities.76 One unique aspect of indigenous peoples’ rights relates to peoples in voluntary isolation and initial contact. In the modern state, individuals and groups generally cannot withdraw from society and refuse to fulfil their obligations of citizenship. Only in exceptional cases are certain groups exempted from compliance with generally applicable norms. Nonetheless, international law increasingly recognises the existence and rights of isolated indigenous peoples, who in most instances never voluntarily renounced their right to self-determination or to their ancestral territories. The fundamental norm of self-determination stands opposed to forced assimilation of these isolated groups. 16.5.1 Identity and Legal Recognition of Juridical Personality Indigenous peoples’ concern with the well-being of all living things is asserted as an essential, unique element of their relationship to nature and the natural world, one that has permeated indigenous identity and is at the core of their world-views and perspectives. Indigenous representatives themselves insist that their racial, linguistic, social, ideological, political, economic and religious characteristics are distinct from other groups in society.77 73

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P. Thornberry, ‘The Convention on the Elimination of Racial Discrimination, Indigenous Peoples and Caste/ Descent-based Discrimination’, in J. Castellino and N. Walsh (eds.), International Law and Indigenous Peoples (Leiden: Martinus Nijhoff Publishers, 2005), p. 17. See IAComHR, Yanomami v. Brazil. Country reports that included chapters on indigenous peoples included: Ecuador (1997), Chile (1985), Bolivia (1996), Suriname (1983, 1985), Brazil (1997), Mexico (1998), Paraguay (1978, 1987), Peru (2000): IAComHR, Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin, 26 May 1984, OAS Doc. OEA/Ser.L/V/II.62, Doc. 26, IAComHR, Resolution on the Friendly Settlement Procedure Regarding the Human Rights Situation, 26 May 1984, OAS Doc. OEA/Ser.L/V/II.62, Doc. 26, IAComHR, Special Report on Communities of People in Resistance in Guatemala, 16 June 1994, OAS Doc. OEA/Ser/L/V/II.86, Doc. 5 rev. 1. IAComHR, Third Report on the Situation of Human Rights in Guatemala, 3 October 1985, OAS Doc. OEA/Ser.L/ V/II.66, Doc. 16; IAComHR, Fourth Report on the Situation of Human Rights in Guatemala, 1 June 1993, OAS Doc. OEA/Ser.L/V/II.83, Doc. 16. Les Malezer, ‘Permanent Forum on Indigenous Issues: “Welcome to the Family of the UN” ’ (2005) 20 International Law and Indigenous Peoples 67.

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Protecting the distinct identity of indigenous peoples through their collective recognition as legal persons requires overcoming a lack of definitional precision.78 Existing texts have agreed on the primacy of self-definition79 as central to identifying indigenous rights-holders.80 ILO Convention No. 169 enshrines the fundamental importance of self-identification in its Article 1. UNDRIP Article 33 and the 2016 American Declaration Article I also underline the importance of self-identification of indigenous peoples as a fundamental criterion for determining their scope of application, the latter specifying that states shall respect the right to selfidentification ‘in keeping with the practices and institutions of each indigenous people’. The 2016 American Indigenous Declaration also affirms, in its Preamble, that indigenous peoples are original, diverse societies with their own identities that form an integral part of the Americas; they suffered historical injustices ‘as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests’. The Preamble affirms ‘the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources’. Many of these rights are collective in nature, as set forth in Article VI. Collective rights are to be ensured by recognising the juridical personality of indigenous peoples (Art. IX) and forbidding all attempts at their assimilation (Art. X). No other part of society is singled out in this way. Going further, indigenous peoples in isolation are guaranteed the right to continue their isolation and to remain withdrawn from the larger society (Art. XXVI). Perhaps the most significant legal consequence flowing from acknowledgement of indigenous collective identity is the right to be recognised collectively as legal persons. Although in early cases the Inter-American Court referred only to members of communities and not to the latter as such, in the Kichwa Indigenous People of Sarayaku v. Ecuador judgment, the Court recognised that indigenous communities themselves hold rights protected by the American Convention.81 The Court announced that it considers the right to cultural identity to be a fundamental collective right of indigenous communities.82 Notably, a footnote to this pronouncement discusses the right to self-determination, a right not mentioned in any Inter-American human rights treaty. In a later Advisory Opinion on the topic ‘Legal Persons as Rights-Holders in the InterAmerican Human Rights System’,83 the Inter-American Court concluded that ‘international standards concerning indigenous and tribal peoples and communities recognize the rights of peoples as collective subjects of international law, not only its members’.84 Indigenous peoples’ 78

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See generally Kingsbury, ‘Reconstructing Self-Determination’; Anaya, Indigenous Peoples in International Law; L.  R.  Pinero, Indigenous Peoples, Postcolonialism and International Law:  The ILO Regime (1919–1989) (Oxford: Oxford University Press, 2006); Z. Skubarty, As If Peoples Mattered: A Critical Appraisal of Peoples and Minorities from the International Human Rights Perspective and Beyond (The Hague:  Nijhoff, 2000); Xanthaki, Indigenous Rights and United Nations Standards. ECOSOC, Study on the Problem of Discrimination Against Indigenous Populations (Cobo Report), UN Doc. E/ CN.4/Sub.2/1986/7, p. 379. Sing’Oei and Shepherd, ‘In Land We Trust’, 72. See also CHR, Standard-Setting Activities: Evolution of Standards Concerning the Rights of Indigenous People: The Concept of ‘Indigenous Peoples’, 10 June 1996, UN Doc. E/Cn.4/ Sub.2/AC.4/1996/2/Add.1, Addendum: Aboriginal and Torres Strait Islander Commission IACtHR, Pueblo Indigena Kichwa de Sarayaku v. Ecuador (Merits and Reparations), 27 June 2012, Ser. C, No. 245. Ibid., para. 213. In addition to citing ILO Convention 169 and UNDRIP, the Court for the first time quotes Principle 22 of the Rio Declaration on the Environment and Development, which speaks of the vital role of indigenous peoples in environmental management and development. See ibid., para. 214. IACtHR, Entitlement of Legal Entities to Hold Rights under the Inter-American Human Rights System, Advisory Opinion OC-22/16 of 26 February 2016, Series A, No. 22, para. 72. Ibid., para. 75.

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‘distinct social, cultural and economic characteristics, including a special relationship with their ancestral territories … require special measures under international human rights law in order to guarantee their physical and cultural survival’.85 As a consequence, states are obliged to recognise the collective juridical status of indigenous peoples. 16.5.2 Self-Determination Self-determination is the right of peoples to ‘freely determine their political status and freely pursue their economic, social and cultural development’.86 It has been described by indigenous representatives as ‘the heart and soul’ of the UN Declaration.87 Since 1945, international law has suggested ‘that self-determination accords to the people of certain territorially-defined units the right to determine the political future of the territory’.88 Given that indigenous claims are nearly all based in territory, it makes sense for this claim to be made, especially if the status of indigenous peoples is viewed as analogous to the colonial peoples who successfully pressed their own claims for self-determination. Yet, in contrast to former overseas colonies, indigenous peoples do not claim independent statehood, but rather accept to continue within the states that currently exist.89 UNDRIP appears to envisage that indigenous peoples occupy a sui generis status distinct from either ‘overseas’ colonial peoples or minority groups within states.90 UNDRIP’s Article 31 speaks of ‘autonomy or self-government in matters relating to internal and local affairs’. ILO Convention No. 169 and the 2016 American Declaration Articles III and IV insist on selfdetermination coupled with respect for territorial integrity. For its part, the African Charter on Human and Peoples’ Rights Article 20 appears to recognise two distinct groups of peoples: those that are living under colonialism and oppression, and those that are not. The first group is entitled to independence and foreign assistance in the struggle for liberation. Other peoples are entitled to maintain their existence and exercise their self-determination within existing states.91 Commentators on the African system generally agree that external self-determination should be limited to peoples under colonial or racial domination.92

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IACtHR, Saramaka People v. Suriname, para. 86. ICCPR and ICESCR. J. Castellino, ‘Conceptual Difficulties and the Right to Indigenous Self-Determination’, in N. Ghanea and A.  Xanthaki  (eds.), Minorities, Peoples and Self-Determination:  Essays in Honour of Patrick Thornberry (Leiden: Nijhoff, 2005), pp. 63–4. Kingsbury, ‘Reconstructing Self-Determination’, p. 20. There are exceptions. The Baguio Declaration, adopted at Baguio City, 22 April 1999, by indigenous representatives, stated that ‘although autonomy and self-government may be a way through which many indigenous peoples wish to exercise their right of self-determination … these are not the only ways by which indigenous peoples may exercise this right … They have the right to establish their own government and determine its relations to other political communities.’ The distinction being based on the state coming to the indigenous and not the indigenous coming to the state. The African Commission has described peoples as groups identifiable by reason of their common ancestry, ethnic origin, language or cultural habits. See, for example, AComHPR, Legal Resources Foundation v. Zambia, Communication No. 211/98, 7 May 2001 (2000–2001) 14 Annual Activity Report of the African Commission on Human and Peoples’ Rights, and the series of cases against Mauritania: Malawi African Association v. Mauritania, Communication No. 54/ 91, Amnesty International v. Mauritania, Communication No. 61/91, and Union Interafricaine des droits de l’homme v. Mauritania, Communication No. 98/93, 11 May 2000 (all contained in AComHPR, (1999–2000) 13 Annual Activity Report of the African Commission on Human and Peoples’ Rights). F. Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda (The Hague: Martinus Nijhoff, 2003), pp. 206 and 253.

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In Kevin Mgwanga Gunme v. Cameroon,93 the applicants asserted that the people of southern Cameroon remain a separate and distinct people who have been marginalised, deprived of equal rights and denied the right to development. The Commission agreed that the southern Cameroon inhabitants constitute a people, but reaffirmed the Commission’s obligation to uphold the territorial integrity of states in the African system, and that it thus could not ‘envisage, condone or encourage secession’.94 The 2016 American Declaration Article XXI contains the right to autonomy or selfgovernment as part of the exercise of self-determination. This extends to internal and local affairs, as well as ways and means to finance their autonomous functions. At the same time, indigenous peoples have the right to participate in decision-making in matters that would affect their rights, in accordance with their own norms, procedures and traditions. They also have the right to equal opportunities to access and to participate fully and effectively as peoples in all national institutions and fora, including deliberative bodies. Indigenous law and legal systems shall be recognised and respected by the national, regional and international legal systems. Article XXIX on the right to development takes up another aspect of self-determination, providing that indigenous peoples have the right to maintain and determine their own priorities with respect to their political, economic, social and cultural development in conformity with their own worldview. They also have the right to be guaranteed the enjoyment of their own means of subsistence and development, and to engage freely in all their economic activities. Finally, in a unique provision in human rights instruments, the 2016 American Declaration Article XXIV addresses treaties, agreements and other arrangements entered into by indigenous peoples, using language similar to that for international agreements concluded between sovereign states. It establishes the right ‘to the recognition, observance, and enforcement of the treaties, agreements and other constructive arrangements concluded with states and their successors, in accordance with their true spirit and intent in good faith and to have the same be respected and honored by the States’. States are also obliged to give due consideration to the understanding of the indigenous peoples with regard to treaties, agreements and other constructive arrangements. 16.5.3 Cultural Rights Denial of the cultural rights of indigenous peoples is said to be ‘[o]ne of the most persistent forms of discrimination’ against them.95 Indigenous cultural heritage comprises both material manifestations, such as burial sites and rock and cave paintings, and immaterial elements, including traditional knowledge and cultural expressions, oral traditions, literature, designs, and visual and performing arts.96 Recognition of an expanded version of cultural rights today includes legal protection of indigenous peoples’ traditional knowledge, cultural and sacred symbols, and folklore. The innovations and practices of indigenous and local communities are also seen as deserving of recognition and fall within the phrase ‘any scientific, literary, or artistic production’. 93

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AComHPR, Gunme et al v. Cameroon, Communication No. 266/2003, 27 May 2009, contained in (2008–2009) 26 Annual Activity Report of the African Commission on Human and Peoples’ Rights, Annex. Ibid., para. 190. See R.  Stavenhagen, Cultural Diversity in the Development of the Americas:  Indigenous Peoples and States in Spanish America, p.  32, study available at www.oas.org/udse/studies/stavenhagen.doc. See also, M. Hadjioannou, ‘The International Human Right to Culture: Reclamation of the Cultural Identities of Indigenous Peoples under International Law’ (2005) 8 Chapman Law Review 201. C. O’Faircheallaigh, ‘Negotiating Cultural Heritage? Aboriginal Mining Company Agreements in Australia’ (2003) 39 Development and Change 1 at 25 and 27.

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CESCR General Comment 17 calls on states to adopt measures to ensure the effective protection of indigenous scientific and artistic traditions which derive from their cultural heritage and traditional knowledge.97 Such measures must be developed through the prior informed consultation of the peoples themselves. The protection of indigenous cultural rights is inextricably linked to self-determination, cultural diversity and cultural identity,98 and requires specific treatment of traditional knowledge outside the conventional intellectual property framework.99 In 2002 UNESCO launched its Local and Indigenous Knowledge Systems (LINKS) Programme, which aims at empowering local and indigenous peoples in various aspects of environmental management by advocating recognition and mobilisation of their unique knowledge. 16.5.4 Territories, Land and Resources Connection to ancestral land is a crucial component of indigenous identity. As Hitchcock puts it:  ‘the history of indigenous peoples is, to a large extent, the chronicle of their unsuccessful attempts to defend their land against invaders.’100 Land is a defining characteristic of indigenous peoples, not only because it is widely regarded as a symbol of the peoples’ history and sense of identity, but because it is also a factor in their economic well-being.101 Indigenous claims to land and natural resources thus implicate but go beyond existing international human rights like the individual right to property.102 UNDRIP articulates the indigenous relationship to land as a mechanism through which to give effect to the right to self-determination and not as alienable property. As such, it includes the right to maintain spiritual relationships with the land, the right not to be forcibly removed or dispossessed, the right for indigenous peoples to have their own land tenure systems, the right to redress for land that has been taken or damaged, and the right to conservation and protection of the environment. Article 26 is particularly important in setting the framework. Decisions reached by the Inter-American Commission and Court similarly suggest that indigenous peoples are subject to special human rights protections with respect to their traditional lands and resources.103 These decisions require that states recognise indigenous peoples’ distinct land tenure systems and guarantee the permanent use and enjoyment of the lands they have used and occupied, together with the resources that have sustained them. These rights in turn give rise to a requirement of prior informed consultation or consent whenever the state seeks to engage in activities impacting indigenous peoples’ lands and resources. CESCR, General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interest Resulting from Any Scientific, Literary or Artistic Production of which He or She Is the Author, 12 January 2006, UN Doc. E/C.12/GC/17, para. 32. 98 M. Strathern, Property, Substance and Effect: Anthropological Essays on Persons and Things (London: The Athlone Press, 1999), p. 134. 99 See Art. 31 UNDRIP. 100 R. K. Hitchcock, ‘International Human Rights, the Environment, and Indigenous Peoples’ (1994) 5 Colorado Journal of International Environmental Law and Policy 1 at 2. 101 See J. Burger, Report from the Frontier: The State of the World’s Indigenous Peoples (London: Cultural Survival, 1987), pp. 13–14. 102 See ECOSOC, Prevention of Discrimination and Protection of Indigenous Peoples and Minorities:  Indigenous Peoples and Their Relationship to Land, Working Paper by the Special Rapporteur Mrs. Erica-Irene Daes, 11 June 2001, UN Doc. E/CN.4/Sub.2/2001/21, pp. 53ff.; see also ECOSOC, Prevention of Discrimination and Protection of Indigenous Peoples: Indigenous Peoples’ Permanent Sovereignty over Natural Resources: Preliminary Report of the Special Rapporteur Mrs. Erica-Irene Daes, 21 July 2003, E/CN.4/Sub.2/2003/20. 103 See Section 16.3.3 above. 97

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The 2016 American Declaration to a large extent codifies the judgments of the Inter-American Court of Human Rights on this issue by confirming the right of indigenous peoples to maintain and strengthen their distinctive spiritual, cultural and material relationship to their lands, territories and resources. States must give legal recognition and protection to these relationships, with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned, conferring possession and ownership according to traditional modalities, but also ‘in accordance with the legal system of each State and the relevant international instruments’ (Art. XXV). Exploitation of subsurface and surface resources on indigenous land has been a consistent source of complaints by indigenous peoples in Latin America, where the property systems of many countries vest subsurface mineral rights in the state regardless of private ownership of the land. Most efforts to develop norms to balance the competing interests of the state and indigenous peoples have focused on procedural rights, especially the contentious principle of free, prior and informed consent.104 Some texts call only for consultations, others for consent when serious harm is threatened, and a third, smaller group generalises the duty to seek and receive the prior informed consent of indigenous peoples before actions that might affect their rights are adopted. UNDRIP and the American Declaration both require ‘free, prior and informed consent’ from affected indigenous peoples prior to actions being undertaken by the state, perhaps granting them a veto in the covered fields. In its 2007 judgment in Saramaka People v. Suriname, the Inter-American Court held that the protection of the right to property cannot be read to preclude all concessions for exploration and extraction in the Saramaka territory, but that the Court will assess and give crucial weight to the question of ‘whether the restriction amounts to a denial of the [indigenous and tribal peoples’] traditions and customs in a way that endangers the very survival of the group and its members’.105 The Court set forth three essential safeguards: (1) the state must ensure the effective participation of the members of the indigenous people, in conformity with their customs and traditions, regarding any development, investment, exploration or extraction plan within their territory; (2) the state must guarantee that they will receive a reasonable benefit from any such plan within their territory; and (3) the state must ensure that no concession will be issued within Saramaka territory unless and until independent and technically capable entities, with the state’s supervision, perform a prior environmental and social impact assessment. The Court viewed benefit-sharing as inherent to the right of compensation recognised under Article 21(2) of the Convention. In response, governments justify their decisions to support the exploitation of natural resources with arguments based on the ‘national interest’106 or the ‘greater good’ – including the fulfilment of economic and social rights – to which the rights and interests of indigenous peoples and others must be subordinated.107

F. MacKay, ‘Indigenous Peoples’ Right to Free, Prior and Informed Consent and the World Bank’s Extractive Industries Review’ (2004) 4 Sustainable Development Law and Policy 43 at 43. 105 IACtHR, Saramaka People v. Suriname, para. 128. 106 The public interest requirement is recognised in customary international law and specifically in the language of Paragraph Four of the 1962 UN General Assembly Resolution 1803 on Permanent Sovereignty over Natural Resources: ‘[n]ationalization, expropriation or requisitioning shall be based on grounds or reasons of public utility, security or the national interest which are recognized as overriding purely individual or private interests, both domestic and foreign.’ UNGA, Resolution 1803 on Permanent Sovereignty over Natural Resources, 14 December 1962, UN Doc. A/5217. 107 MacKay, ‘Indigenous Peoples’ Right to Free, Prior and Informed Consent’, 53. 104

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The provisions and jurisprudence of human rights law allow restrictions on or deprivations of property if the measures taken meet the tests of necessity, proportionality,108 non-discrimination and public interest for the purpose of achieving a legitimate objective in a democratic society.109 Expropriation of lands may require even greater justification when balanced against the preservation of indigenous culture, subsistence agriculture and biodiversity.

16.6 Conclusions If human rights law aims to protect those individuals who are threatened with abuse because of their membership in a particular group, then it becomes important to correctly identify, recognise and empower those groups as such. The question remains, however, whether such identification should result in the conclusion of a separate treaty for each group.110 No doubt it may be argued that this amounts to creating unfair ‘special rights’.111 But the genie may already have escaped the bottle; with the number of specific treaties already concluded, it becomes increasingly difficult to reject instruments for other marginalised groups, like indigenous peoples, whose situations render them particularly vulnerable to human rights abuses. At present, there can be little doubt that they have sui generis human rights, both individual and collective.

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Proportionality is ‘based on the restriction being closely adjusted to the attainment of a legitimate objective, interfering as little as possible with the effective exercise of the restricted right’. IACtHR, Yakye Axa Indigenous Community v. Paraguay, para. 144. Ibid., para. 144. See V. Van Dyke, ‘The Individual, the State, and Ethnic Communities in Political Theory’, in W. Kymlicka (ed.), The Rights Of Minority Cultures (Oxford: Oxford University Press, 1995), p. 31; R. Barsh, ‘Indigenous Peoples and the Idea of Individual Human Rights’ (1995) 10 Native Studies Review 35; Alston, Peoples’ Rights. See G. Triggs, ‘The Rights of “Peoples” and Individual Rights: Conflict or Harmony?’, in J. Crawford (ed.), The Rights Of Peoples (Oxford: Clarendon Press, 1988), p. 141.

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17 The Evolution and Revolution of Indigenous Rights Fergus MacKay

17.1 Introduction In her excellent chapter, Dinah Shelton documents that indigenous peoples’ rights have assumed a prominent place in international human rights law and that a discrete body of law, affirming and protecting their rights, has emerged. While it has deep historical roots, this body of law began to take its current form in the mid-1980s, gathered speed around the turn of the millennium with an explosion of jurisprudence, and was given greater impetus with the adoption of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP)1 in 2007. More recent jurisprudence and standards, particularly at the regional level, and various global initiatives have continued this process, including in relation to ‘implementation’ of the UNDRIP.2 Sustained and highly effective advocacy by indigenous peoples has been central to these developments.

17.2 Historical Evolution There has been considerable debate about the doctrinal basis, contours and content of indigenous peoples’ rights, both as a matter of general international law and within the modern law of human rights.3 Shelton correctly observes that this debate is not new: the rights of indigenous peoples were a major part of legal discourse during the so-called ‘age of discovery’ and thereafter, when Europeans sought to rationalise and legitimise colonial acquisitions.4 Indigenous peoples were generally treated as sovereign entities with rights, even if those rights were frequently

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UNGA, Declaration on the Rights of Indigenous Peoples, 13 September 2007, UN Doc. A/RES/61/295. See e.g. HRC, Resolution 33/25 on Expert Mechanism on the Rights of Indigenous Peoples, 30 September 2016, UN Doc. A/HRC/Res/33/25, paras. 1 and 2(a) (expanding the mandate of the UN Expert Mechanism on the Rights of Indigenous Peoples, inter alia, ‘to achieve the ends of the Declaration through the promotion, protection and fulfilment of the rights of indigenous peoples’). See e.g. B. Kingsbury, ‘Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law’, in P. Alston (ed.), Peoples’ Rights (Oxford: Oxford University Press, 2001), p. 69. See e.g. F. de Vitoria, De Indis Noviter Inventis (On the Indians Recently Discovered) (1532); J. B. Scott (ed.), The Freedom of the Seas or the Right which Belongs to the Dutch to Take Part in the East Indian Trade – A Dissertation by Hugo Grotius (1608) (New York: Oxford University Press, 1916); M. F. Lindley, The Acquisition and Government of Backward Territory in International Law (London:  Longmans, Green and Co. Ltd., 1926); K. Roberts-Wray, Commonwealth and Colonial Law (London: Stevens, 1966); for an especially cogent examination of these issues, see R. A. Williams, The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1990).

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ignored in practice.5 As Felix Cohen observes with regard to the Spanish, they ‘adopted many laws and issued many charters recognizing and guaranteeing the rights of Indians. Although the[ir] actions … often contrasted sharply with the[se] principles … generally such actions violated rather than reflected existing Spanish laws.’6 Legal treatment of indigenous peoples evolved over the following centuries, essentially rendering them invisible in the eyes of international law by the early twentieth century:7 e.g., as typified by the decisions in the Eastern Greenland and Cayuga Indians cases.8 The decision in the latter upheld the principle that the Cayuga nation and its members had no legal status in international law. This kind of analysis continued well into the late twentieth century. Referring to the International Court of Justice’s 1992 decision in Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Reisman reflected that the Court’s approach represented a disengagement of judicial responsibility, from past tragedies as well as the present and often dire situations of indigenous peoples, ‘caused by the inertial, and apparently unthinking, application of anachronistic law’.9 The association between indigenous peoples’ rights and colonialism continues to reverberate in the law today. In this respect, Shelton explains that a number of leading scholars have concluded that the law on the rights of indigenous peoples has developed on the basis of ‘sui generis deviations’ from both traditional sovereignty and self-determination.10 In the same vein, Patrick Macklem concludes that indigenous rights in international law recognize differences, partly denied and partly produced by the international distribution of territorial sovereignty initiated by colonization. The morally suspect foundations of the sovereign power that a State exercises over indigenous peoples residing on its territory are why indigenous rights merit recognition in the international legal register.11

This view is also represented in some domestic jurisprudence. The Canadian Supreme Court, for instance, has held that the doctrine of aboriginal rights exists for one main reason: ‘when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land … It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status.’12 Macklem additionally concludes that international law continues to exclude and include indigenous peoples in its distribution of sovereign authority by refusing to recognize that they possess a right … to acquire sovereign statehood. Instead, indigenous

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See e.g. H. Berman, ‘Perspectives on American Indian Sovereignty and International Law, 1600 to 1776’, in O. Lyons (ed.), Exiled in the Land of the Free: Democracy, Indian Nations and the U.S. Constitution (Santa Fe: Clear Light Publishers, 1992), p. 135. F. Cohen, Handbook of Federal Indian Law (Charlottesville:  Michie, Bob-Merill, 1982), p.  52 (original footnotes deleted). See e.g. M. Burns, ‘The Natural Law of Nations: Society and the Exclusion of First Nations as Subjects of International Law’, in I. Watson (ed.), Indigenous People as Subjects of International Law (Abingdon and New York: Routledge, 2018). Permanent Court of International Justice (PCIJ), Legal Status of Eastern Greenland, Denmark v. Norway, judgment, 5 April 1933, Series A/B, No. 53; and Cayuga Indians (Great Britain) v.  United States, 22 January 1926, (1926) VI RIAA 173. M. Reisman, ‘Protecting Indigenous Rights in International Adjudication’ (1995) 89 American Journal of International Law 350 at 357. D. Shelton, in this volume, p. 217. P. Macklem, The Sovereignty of Human Rights (Oxford: Oxford University Press, 2015), p. 136. Supreme Court of Canada, R. v. Van der Peet, [1996] 2 SCR 507, 1996 CanLII 216 (SCC), para. 30 (original emphasis).

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peoples have rights of internal self-determination, which entitle them to extensive protection associated with their identities, cultures, territories, and forms of governance.13

This last point is reflected in Article 4 of UNDRIP, which recognises that, in exercising their right to self-determination, indigenous peoples ‘have the right to autonomy or self-government in matters relating to their internal and local affairs’. The right to self-government, inter alia, requires that states ‘provide spheres of governmental autonomy for indigenous peoples and their communities, while also ensuring their participation in decisions affecting them’.14 However, while the general contours of the guarantees pertaining to these autonomous regimes have been elucidated, their full nature and extent have yet to be articulated or directly tested on the international level. It is extremely doubtful that most states would agree, publicly or otherwise, with Macklem’s above characterisation of the underlying reasons for indigenous rights. Indeed, some states would be startled by such thinking, especially as some continue to maintain that indigenous rights somehow illegitimately discriminate against other sectors of their populations.15 Some argue that these rights are merely some species of temporary special measures: enough of them to prompt the UN Committee on the Elimination of Racial Discrimination (CERD) to explicitly refute this notion.16 It has emphasised that ‘there is a distinction to be drawn between special and temporary measures for the advancement of ethnic groups … and [the] permanent rights of indigenous peoples’.17 It likewise has cautioned against characterising these rights, as some states do, as ‘inadmissible separate rights’, which, it says, must be distinguished from rights accepted and recognised by the international community ‘to secure the existence and identity of groups such as … indigenous peoples’.18 References to self-determination in connection with indigenous peoples were fiercely resisted by some states in the standard-setting processes in the International Labour Organization (ILO) and the United Nations that resulted in the adoption, respectively, of ILO Convention No. 169 in 1989 (ILO 169)19 and the UNDRIP in 2007. Some also rejected the validity of collective rights with equal vigour. ILO 69 reflects this consternation about self-determination in its first article, which explicitly qualifies the use of the term ‘peoples’ so as to avoid any implication with regard to self-determination, deferring this issue to the then-ongoing political negotiations around the UNDRIP. On the other hand, the UNDRIP, today endorsed by almost all states, affirms in its Article 3 that indigenous peoples hold the right to self-determination as iterated in Article 1(1) of the ICCPR and ICESCR. It does not include the language on resource sovereignty in Article 1(2) of the Covenants, spelling this out instead in a variety of provisions on land and resource rights (e.g. Arts. 20, 25–32). To avoid any misunderstanding, Article 46 precludes any action that may threaten a state’s territorial integrity. 13 14

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Macklem, The Sovereignty of Human Rights, p. 48. See e.g. A. Xanthaki, Indigenous Rights and United Nations Standards:  Self-Determination, Culture and Land (Cambridge: Cambridge University Press, 2007), p. 140. See e.g. IACtHR, Saramaka People v.  Suriname (Preliminary Objections, Merits, Reparations and Costs), 28 November 2007, Ser. C, No. 172, para. 99 (recalling that Suriname ‘suggested that legislation providing for “special treatment” for indigenous and tribal groups raises questions of State sovereignty and discrimination with regard to the rest of the population’). CERD, General Recommendation No. 32:  The Meaning and Scope of Special Measures in the International Convention on the Elimination of All Forms Racial Discrimination, 24 September 2009, UN Doc. CERD/C/GC/32, para. 26 (emphasising that special measures ‘should not be confused with specific rights … such as … the rights of indigenous peoples … Such rights are permanent rights … [and] States parties should carefully observe distinctions between special measures and permanent human rights in their law and practice’). CERD, Concluding Observations:  Consideration of Reports Submitted by State Parties under Art. 9 of the Convention, 15 August 2007, UN Doc. CERD/C/NZL/CO/17, para. 15. CERD, General Recommendation No. 32, para. 15. International Labour Organization Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries, Geneva, signed 27 June 1989, in force 5 September 1991, 1650 UNTS 383.

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17.3 Contemporary Situation It is now common to classify indigenous rights as collective rights that are grounded in and operate within the framework of the right to self-determination. Recognition of both, for instance, was noncontroversial in 2016 when the Organization of American States adopted its American Declaration on the Rights of Indigenous Peoples. The same applies in the jurisprudence of various human rights tribunals and bodies, such as the Inter-American Commission and Court of Human Rights, the equivalent bodies in Africa and various UN treaty bodies (most prominently, the Human Rights Committee (HRC), the Committee on Economic, Social and Cultural Rights (CESCR) and the CERD). The Inter-American Commission, for instance, has affirmed that ‘when addressing the rights of indigenous peoples, the fundamental premise is that they are rights holders of the collective right to self-determination’.20 In the Inter-American system, the Commission and the Court also read property rights, political rights and the right to juridical personality in conjunction with the right to self-determination. This began in 2007 with the Inter-American Court’s judgment in Saramaka People v. Suriname, where the Court observed that the HRC and CESCR had previously applied common Article 1 of the ICCPR and ICESCR to indigenous peoples. Consequently, it ruled that it may not interpret the property rights protections in Article 21 of the American Convention on Human Rights in a way that would restrict the right to self-determination to a lesser degree than is recognised by the Covenants.21 It further observed that this supports an interpretation of Article 21 so as to protect indigenous peoples’ right to freely determine and enjoy their own social, cultural and economic development and the right to own and effectively control their traditional lands, territories and resources, all without external interference and through their own institutions and procedures.22 Various international authorities also recognise that the right to effective control over traditionally owned lands, territories and resources shall be exercised by and through indigenous peoples’ own institutions and procedures and in accordance with their customs and traditions.23 This includes their autonomous institutions of self-government in accordance with their right to autonomy or self-government.24 The Inter-American Commission has observed in this regard that the establishment of a legal mechanism for the recognition of collective property rights 20

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See e.g. IAComHR, Indigenous Peoples, Afro-Descendent Communities and Natural Resources:  Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities, 31 December 2015, OAS Doc. 47/ 15, paras. 237 and 239 (explaining that ‘The full effectiveness of the right to self-determination is closely related to the exercise of other specific rights of indigenous peoples that guarantee their existence as peoples, among which the right to integrity and cultural identity has a central place … Another essential element of the right to self-determination is constituted by the relations they have with their lands, territories and natural resources’). IACtHR, Saramaka People v. Suriname, para. 93. See also IACtHR, Kaliña and Lokono Peoples v. Suriname (Merits, Reparations, and Costs), 25 November 2015, Ser. C, No. 309, para. 124 (stating that ‘in this case, the right to property protected by Article 21 of the [American Convention], and interpreted in light of the rights recognized in Article 1 common to the two Covenants … which cannot be restricted when interpreting the American Convention’). IACtHR, Kaliña and Lokono Peoples v. Suriname, paras. 95 and 115. See e.g. UN Human Rights Council (UNHRC), Study by the Expert Mechanism on the Rights of Indigenous Peoples, Access to Justice in the Promotion and Protection of the Rights of Indigenous Peoples, 30 July 2013, UN Doc. A/HRC/24/50, para. 20 (observing that ‘indigenous peoples have the right “to participate fully, if they so choose, in the political, economic, social and cultural life of the State”. Here, the right to self-determination requires recognition of the legal standing of indigenous peoples as collectives, and of their representative institutions, to seek redress in appropriate forums’). See e.g. CERD, Concluding Observations:  Costa Rica, 25 September 2015, UN Doc. CERD/C/CRI/CO/19–22, para. 25 (expressing concern that local government bodies in Costa Rica ‘have supplanted indigenous peoples’ own institutions in their relations with the State’ and recommending ‘that indigenous peoples’ authorities and representative institutions be recognized in a manner consistent with their right to self-determination in matters relating to their internal and local affairs’).

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‘cannot exclude rights of indigenous peoples that are associated mainly with the right to selfgovernment according to their traditional uses and customs’.25 With regard to the right to juridical personality, the Inter-American Court held in 2007 that, when read together with the right to self-determination, this requires recognition of indigenous peoples as peoples in domestic law and practice.26 It also linked this with the right to ‘have equal [and collective] access to judicial protection’.27 It has subsequently reaffirmed that international standards recognise that indigenous rights are ‘the rights of peoples’ and that indigenous peoples are ‘collective subjects of International Law’.28 The HRC likewise reads political and minority cultural rights conjunctively with Article 1 ICCPR, both in its jurisprudence pursuant to Optional Protocol I and in its concluding observations. Reading Articles 1 and 27 together, the HRC has observed that this vests in indigenous peoples the right to ‘effective possession of and effective control’ over their natural wealth and resources.29 The same is also the case for the CESCR, which routinely addresses indigenous land, resource and other rights under Article 1(2) ICESCR when reviewing periodic reports submitted by states parties.30 Both have also highlighted that effective participation in external decision-making that may affect indigenous peoples’ rights is required, and that this includes their ‘free, prior and informed consent’.31 In short, indigenous peoples’ rights are unique insofar as they represent the first time that international law has endorsed a collective human rights framework explicitly grounded in the right to self-determination outside the classic colonial context,32 and to sub-national groups.33 Various treaty bodies, the Inter-American Commission and the three United Nations mechanisms mandated to monitor indigenous peoples’ rights have determined that ‘the most 25

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IAComHR, Kuna Indigenous Peoples of Madungandi and Embera Indigenous People of Bayano v.  Panama, 13 November 2012, Case 12.354, Repor 125/12, para. 259. IACtHR, Saramaka People v. Suriname, para. 172. Ibid., para. 167. IACtHR, Kichwa Indigenous People of Sarayaku v. Ecuador (Merits and Reparations), 27 June 2012, Ser. C, No. 245, para. 231. See also IACtHR, Entitlement of Legal Entities to Hold Rights under the Inter-American Human Rights System, Advisory Opinion OC-22/16 of 26 February 2016, Series A, No. 22, para. 72 (explaining that ‘international standards concerning indigenous and tribal peoples and communities recognize the rights of peoples as collective subjects of international law, not only its members’); and, more generally, I. Watson (ed.), Indigenous People as Subjects of International Law (Abingdon and New York: Routledge, 2018. HRC, Apirana Mahuika et al. v. New Zealand, Communication No. 547/1993, 27 October 2000, CCPR/C/70/D/547/ 1993, para. 9.7. See e.g. ECOSOC, Concluding Observations:  Paraguay, 20 March 2015, UN Doc. E/C.12/PRY/CO/4, para. 6 (expressing concern that Paraguay ‘has not yet legally recognized the right of indigenous peoples to dispose freely of their natural wealth and resources or put in place an effective mechanism to enable them to claim their ancestral lands (art. 1)’). Identical or similar language is found in the 2015–2016 reviews of Chile, Thailand, Uganda, Venezuela, Guyana, Kenya, Namibia, Canada, Honduras, Sweden and Costa Rica. See e.g. HRC, Ángela Poma Poma v. Peru, Communication No. 1457/2006, 24 April 2009, UN Doc. CCPR/C/95/D/ 1457/2006, para. 7.6 (where the Human Rights Committee ruled that ‘participation in the decision-making process must be effective, which requires not mere consultation but the free, prior and informed consent of the members of the community’ in relation to ‘the admissibility of measures which substantially compromise or interfere with the culturally significant economic activities of a minority or indigenous community’). See also AComHPR, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya, Communication No. 276/2003, 4 February 2010, para. 226 (ruling that ‘[i]n terms of consultation, the threshold is especially stringent in favour of indigenous peoples, as it also requires that consent be accorded’) and para. 291 (‘the African Commission is of the view that any development or investment projects that would have a major impact within the Endorois territory, the State has a duty not only to consult with the community, but also to obtain their free, prior, and informed consent, according to their customs and traditions’). See e.g. J. Castellino, ‘Territorial Integrity and the “Right” to Self-Determination: An Examination of Conceptual Tools’ (2008) 33 Brooklyn Journal of International Law 499. A. Xanthaki, ‘Indigenous Rights in International Law over the Last 10 Years and Future Developments’ (2009) 10 Melbourne Journal of International Law 1 at 4 (observing that, while ‘the extent of their right is no different from that

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important right for indigenous peoples is that of self-determination, “as without the enjoyment of that right, they could not enjoy the other fundamental human rights” ’.34 Indigenous rights, however, are more than simply a novel adaptation and elaboration of the right to self-determination. Clearly, indigenous individuals have the same human rights as other individuals. These rights have been contextualised and often collectivised to some extent to respond to indigenous characteristics and needs. To varying degrees, they derive and draw from multiple human rights concepts, including elaborations of non-discrimination/equal protection norms, cultural rights and others.35 The CERD, for instance, essentially treats violations of indigenous peoples’ rights as discriminatory per se, including in their collective aspect. Indigenous rights are, therefore, firmly grounded in the prevailing human rights framework, while at the same time they have also evolved into a new and unique human rights regime in light of their collective rights and self-determination foundations and architecture. As stated by the InterAmerican Commission, ‘the international community has recognized that these peoples are different from other groups and therefore have particular rights, whose basic premise is the right to self-determination’.36 It is important to note that various provisions of the UNDRIP have been cited as authority in an increasing number of domestic and international judicial and quasi-judicial proceedings.37 Some have even called on states to ‘comply’ with the UNDRIP and incorporate it into domestic law.38 The consensus seems to be that the UNDRIP in toto, at a minimum, is an authoritative ‘guide’ by which states should interpret their obligations under various human rights instruments.39 There is clear evidence that the UNDRIP is influencing the development of standards in the Inter-American and African human rights systems,40 blurring the distinction between ‘soft’ and ‘binding’ law, and intensifying the interrelationship between indigenous rights in universal and

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of any other current beneficiary of the right’, this is nonetheless a major advance as ‘international law and practice have never before agreed to recognise the unqualified right of self-determination to sub-national groups’). IAComHR, Indigenous Peoples, Afro-Descendent Communities,and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities, 31 December 2015, OAS Doc. 47/15, para. 237. W. Kymlicka, ‘Beyond the Indigenous/Minority Dichotomy?’, in S. Allen and A. Xanthaki (eds.), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Oxford and Portland: Hart Publishers, 2011), p. 183. IAComHR, Indigenous Peoples, Afro-Descendent Communities and Natural Resources, para. 27. See e.g. F. MacKay, ‘The Case of the Kaliña and Lokono Peoples v. Suriname and the UN Declaration on the Rights of Indigenous Peoples: Convergence, Divergence and Mutual Reinforcement’ (2018) 11 Erasmus Law Review 31; and the Supreme Court of New Zealand, New Zealand Mãori Council et al. v. A.G. et al., judgment, 27 February 2013, [2013] NZSC 6 (the New Zealand Supreme Court relied on the UNDRIP in construing the scope of Mãori rights to freshwater and geothermal resources). See e.g. CERD, Concluding Observations: Suriname, 28 August 2015, UN Doc. CERD/C/SUR/CO/13–15, para. 24 (recommending drafting a framework law on the rights of indigenous and tribal peoples, and ‘that this framework law comply with the provisions of the [UNDRIP]’); ECOSOC, Concluding Observations: Uganda, 8 July 2015, UN Doc. E/C.12/UGA/CO/1, para. 13 (recommending that Uganda includes ‘recognition of indigenous peoples in the Constitution in line with the [UNDRIP]’); CRC, Concluding Observations: South Africa, 30 September 2016, UN Doc. CRC/C/GAB/CO/2, para. 61(a) (calling on Gabon to ‘[a]dopt a law for the protection of indigenous people based on the [UNDRIP]’); and CEDAW Committee, Concluding Observations:  Bolivia, 24 July 2015, UN Doc. CEDAW/C/BOL/CO/5–6, para. 25(c) (recommending that Bolivia ‘[e]nsure[s] that indigenous women have access to education in compliance with the criteria enshrined in the [UNDRIP]’). See e.g. CERD, Concluding Observations: United States of America, February 2008, UN Doc. CERD/C/USA/CO/ 6, para. 29 (recommending that the USA employ the UNDRIP ‘as a guide to interpret [its’] obligations relating to indigenous peoples’); and CRC, General Recommendation No. 11: Indigenous Children and their Rights under the Convention, 12 February 2009, UN Doc. CRC/C/GC/11, para. 82. See e.g. AComHPR, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya (extensively citing ACtHR, Saramaka People v. Suriname); and IACtHR, Kaliña and Lokono Peoples v. Suriname.

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regional human rights law.41 Further, there is also considerable coherence between interpretations of binding instruments and the standards expressed in the UNDRIP. This is not a remarkable or surprising conclusion considering that the UNDRIP itself was the result of a process that largely memorialised existing and emerging indigenous rights norms. Taken together, this supports the view that much of the UNDRIP restates existing law and should be seen as more than mere soft law.42

17.4 Conclusion There is merit to the view that indigenous rights have come full circle in international law from the days of discovery – or, as Dinah Shelton puts it in the title of her chapter, ‘Everything Old Is New Again’. Likewise, Felix Cohen’s above-quoted statement continues to be relevant: where recognised, these rights continue to be fragile in light of state practice, which often deviates from the law, human rights law especially. It is also important to note that the substantial advances made by indigenous peoples in gaining international recognition and protection for their rights are presently subject to some amount of push-back by states. This is especially the case when a state’s self-defined economic interests may be affected. It is also reflected somewhat in some recent jurisprudence, which has focused almost as much on the permissible restrictions to indigenous rights as it has on the rights themselves. Indeed, a few recent decisions bring to mind Yash Ghai’s comment that ‘rights are struggling to stay afloat in the sea of exceptions (and alas not always succeeding!)’.43 Nonetheless, and as emphatically declared by the Caribbean Court of Justice in 2015, today it is ‘beyond dispute that international law recognizes and protects the rights of indigenous peoples’.44

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See e.g. M. Barelli, ‘The Interplay Between Global and Regional Human Rights Systems in the Construction of the Indigenous Rights’ (2010) 32 Human Rights Quarterly 951. See e.g. M. Barelli, ‘The Role of Soft Law in the International Legal System:  The Case of the United Nations Declaration on the Rights of Indigenous Peoples’ (2009) 58 International and Comparative Law Quarterly 957 at 966 (explaining that ‘the strong relationship between the content of the Declaration and existing law should be recognized. The fact that the Declaration contains provisions that refer to rights and principles already recognized, or emerging, in the realm of international human rights, and, more specifically, within the indigenous rights regime, represents a first important indication of the legal significance of the instrument’). Y. Ghai, ‘The Kenyan Bill of Rights: Theory and Practice’, in P. Alston (ed.), Promoting Human Rights through Bills of Rights: Comparative Perspectives (Oxford: Oxford University Press, 1999), p. 197. The Caribbean Court of Justice, Maya Leaders Alliance v. A.G. Belize, judgment, 30 October 2015, [2015] CCJ 15 (AJ), para. 53.

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18 Animal Rights Tomasz Pietrzykowski*

18.1 Animal Sentience – from a Moral to a Legal Problem It is obvious that scientific developments may have direct implications for moral and legal beliefs. Examples of science stimulating and affecting the development of moral and legal ideas are numerous and all too well known. The concept of brain death, and the corresponding legal regulations, followed the advancement of knowledge on the biological foundations of human life and consciousness. Legal restrictions on smoking emerged after the severe impact of cigarettes on human health had been scientifically proven. The same process, though on a much larger scale, is taking place in respect of non-human animals. Since the second half of the twentieth century, the progress of scientific inquiries on the complexity of animal minds has been accelerating.1 We know more and more not only about surprisingly sophisticated patterns of animal behaviour, but also about the complex mental capacities that underlie them. They correspond to the complexity of neural structures in many species of animals (mainly vertebrates), in particular mammals and birds, stemming from evolutionary common or functionally parallel origins to substantial parts of our own nervous system. After decades of intensive research, the advanced forms of not only animal sentience but also full-fledged consciousness (albeit with a limited extent of reflective self-consciousness) have become popular common-sense conjectures, as well as matters of robust scientific knowledge.2 They have influenced public opinion and have induced the evolution of social attitudes towards proper standards for the treatment of animals. * 1

2

The author wants to give his additional thanks to the National Science Centre in Poland for the generous support of his research without which this contribution would not have been possible (grant no 2017/27/B/HS5/00085). Donald Griffin’s books, The Question of Animal Awareness:  Evolutionary Continuity of Mental Experience (New  York:  Rockefeller University Press, 1976) and Animal Thinking (Cambridge:  Cambridge University Press, 1984) are commonly hailed as groundbreaking in the development of the studies on animal minds. Later on, the emergence of neuroscience additionally contributed to the recognition of the direct relations between the relevant nervous structures in human and non-human animals and respective psychological phenomena. A long development of scientific inquiries into animal minds – from C. Darwin to D. Griffin to contemporary comparative psychology – has been somehow concluded by the group of leading biologists and neuroscientists who in 2012 published so-called Cambridge Declaration on Consciousness (signed on occasion of the Francis Crick Memorial Conference on Consciousness in Human and non-Human Animals). It asserts that: ‘convergent evidence indicates that non-human animals have the neuroanatomical, neurochemical, and neurophysiological substrates of conscious states along with the capacity to exhibit intentional behaviors. Consequently, the weight of evidence indicates that humans are not unique in possessing the neurological substrates that generate consciousness. Non-human animals, including all mammals and birds, and many other creatures, including octopuses, also possess these neurological substrates.’ For the general review of present knowledge on the evolutionary origin of cognitive and behavioural skills in human and non-human animals, see e.g. M. Papini, Comparative Psychology – Evolution and Development of Behavior (New York: Psychology Press, 2008).

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The scientifically informed changes in the social perception of animals have also led to gradual reforms in the legal situation of animals in many countries in Europe and elsewhere. The process of modest recognition of legal relevance of the basic needs and interests of animals that are exploited by human societies began at least two centuries ago, but took its present shape in the late twentieth century.3 Its key legal outcomes include comprehensive laws protecting animal welfare that have been adopted in most European countries, as well as a wide range of international and EU instruments aimed at establishing common legal standards of animal treatment. The main conceptual breakthrough in modern animal welfare laws is known as the ‘dereification’ of animals. The term, coined from the Latin noun res (in genitive and dative – rei), refers to the change in the legal status of animals by means of which they have been excluded from the legal category of things (res), to which they belonged in the past. Legal rules dereifying animals have been laid down in numerous legal systems, including in Austria, Switzerland, Poland, Germany and France.4 In the most radical versions, such as in Switzerland, this is combined with legal recognition of the unique dignity of each animal, justifying the protection of their basic interests.5 At the same time, the idea of granting animals their own legal rights have emerged in the philosophical and legal discourse and has been discussed at length in the literature. As a philosophical theory, it was proposed by Tom Regan in the 1980s as an alternative to the utilitarian concept of animal liberation advanced by Peter Singer.6 Later on, various theoretical accounts of animal rights were developed by lawyers such as Steven Wise and Gary Francione.7 The theory has also been manifested in the way in which several important paralegal documents were drafted, such as the Universal Declaration of Animal Rights, signed in London in 1977. These documents also include the World Declaration on Great Primates (1994) and the Declaration for Rights for Cetaceans (Helsinki, 2010).8 None of these documents have any formal legal force and they remain ideological manifestos calling for human recognition of what is morally due to animals. Even if the content of these documents does not reflect the present state of hard law, either at an international or a national level in any country of the world, there are constant attempts to impel particular legal systems to formally recognise that animals may hold genuine legal rights. One such attempt is the famous Great Ape Project, trying to persuade law-makers to grant great primates the basic legal rights to life, individual freedom and protection from torture. The project campaigns have not had substantial effects, although it should be noted that in 2010 European Union law banned experimenting on great apes (with some exceptions). The

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E.g. N. Phelps, The Longest Struggle – Animal Advocacy from Pythagoras to PETA (New York: Lantern Books, 2007), pp. 169ff. For details see T. Pietrzykowski, Personhood Beyond Humanism: Animals, Chimeras, Autonomous Agents and the Law (Cham: Springer International Publishers, 2018). See. G. Bollinger, Animal Dignity Protection in Swiss Law  – Status Quo and Future Perspectives (Zurich: Schulthess, 2016). T. Regan, The Case for Animal Rights (Berkeley: University of California Press, 1983). S. Wise, Rattling the Cage: Toward Legal Rights for Animals (Cambridge: Perseus Books, 2000); S. Wise, Drawing the Line – Science and the Case for Animal Rights (Cambridge: Perseus Books, 2002); G. Francione, Introduction to Animal Rights: Your Child or the Dog? (Philadelphia: Temple University Press, 2000); G. Francione, Animals as Persons – Essays on the Abolition of Animal Exploitation (New York: Columbia University Press, 2008). Those documents are drafted in the language of rights. The declaration for Rights for Cetaceans, for example, sets forth that ‘every cetacean has the right to life … All cetaceans have the right to freedom of movement and residence within their natural environment’, and so on.

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prohibition, however, is not phrased in terms of those animals’ right not to be subjected to scientific experimentation.9 Similar efforts are being undertaken in respect of cetaceans, but their impact on the actual shape of law has also been very modest. Up to now, only bans or restrictions on keeping dolphins in captivity for entertainment have been introduced in several countries.10 A recent campaign of this kind was launched in the USA by the Non-Human Rights Project (NHRP) led by Steven Wise. The objective of the campaign is to obtain a court order to release chimpanzees kept in captivity on the basis of the habeas corpus principle. The idea behind such litigation is that, as soon as a court recognises the applicability of the habeas corpus rule to a non-human animal, it will mean that the latter has been granted the status of a person in law capable of holding its own rights. Up to date, however, all lawsuits brought by NHRP have been unsuccessful (even if they have stirred up many legal and public discussions and gained support from some leading legal scholars).11 Unexpectedly, two courts in Argentina have recently issued decisions invoking the concept of rights held by an ape recognised as a non-human rights holder. In the world-famous case of the orangutan Sandra, which was kept in the Buenos Aires zoo, the Federal Criminal Court of Cassation in Buenos Aires declared (as obiter dictum) that: on the basis of a dynamic rather than static interpretation of the law, animals should be recognised as holders of rights, since there are legal rights granted to non-human (animal) subjects, imposing a corresponding field of protection.12

Since the court found certain formal reasons for refusing to judge the case on its merits, it was passed to the provincial court of the city of Buenos Aires. The latter, when reviewing the case, held that the above-quoted statement on the status of animals is legally correct (although it added some comments aimed at playing down any further legal consequences), and found that ‘having then established that the orangutan Sandra is a holder of rights … in accordance with the requirements of Law 14.346, we have concluded that the orangutan Sandra has the right not to be subjected to ill-treatment or acts of cruelty or to abusive conduct’.13 The judgment does

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Directive 2010/63/EU of the European Parliament and of the Council of 22 September 2010 on the protection of animals used for scientific purposes provides for that: ‘Notwithstanding paragraphs 1 and 2, great apes shall not be used in procedures, subject to the use of the safeguard clause in Article 55(2)’ (Art. 8(3)). Explaining this prohibition in the preamble, the Directive points out that ‘the use of great apes, as the closest species to human beings with the most advanced social and behavioural skills, should be permitted only for the purposes of research aimed at the preservation of those species and where action in relation to a life-threatening, debilitating condition endangering human beings is warranted, and no other species or alternative method would suffice in order to achieve the aims of the procedure. The Member State claiming such a need should provide information necessary for the Commission to take a decision.’ The updated information may be found at www.bornfree.org.uk/campaigns/zoo-check/captive-whales-dolphins/ global/. For details, see the information and sources on the NHRP webpage – www.nonhumanrights.org. ‘Que, a partir de una interpretación jurídica dinámica y no estática menester es reconocerle al animal el carácter de sujeto de derechos, pues los sujetos no humanos (animales) son titulares de derechos, por lo que se impone su protección en el ámbito competencial correspondiente’ (Cámera Federal de Casación Penal, 18 December 2014, CCC 68831/2014/CFCI, Orangutana Sandra s/recurso do casacion/ s.Habeas Corpus). Translation based on that found on Non-Human Rights Project, www.nonhumanrights.org/blog/copy-of-argentine-court-ruling/. My translation of the original Spanish: ‘Habiendo quedado establecido entonces que la orangutana Sandra es un sujeto titular de derechos, debe delimitarse entonces cuál es la consecuencia práctica de esta decisión. Por aplicación de las prescripciones de la ley 14.346, hemos concluido que la orangutana Sandra tiene derecho a no ser sometida a malos tratos o actos de crueldad ni que ocurran conductas humanas abusivas a su respecto.’ (Judgment of 21 October 2015, issued by the Buenos Aires provincial court, A2174-2015/0).

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not seem to have, up to now, any substantial, wider consequences for the general development of Argentinian animal law, nor the concept of animal rights worldwide.

18.2 The Concept of Animal Rights from a Legal Theoretical Point of View As is well known, the essence of a legal right may be conceived basically in one of two ways. According to the interest theory, the point of a right is the protection of the legally relevant interests of a right-holder. In the view of the alternative will or choice theory, the rights are not meant to protect the interest, but rather the free exercise of will of their holders.14 In both cases, however, holding a right is intimately related to a duty imposed on someone else. In the case of the interest theory, the right-holder is the beneficiary of the duties imposed on others. For the will theory, the right implies the right-holder’s authority to control – i.e. to trigger or waive – duties imposed on others. Both theories have their obvious strengths and weaknesses, and both remain debated in legal theory.15 Both also have radically different implications for the concept of animal rights. The choice theory is clearly irreconcilable with the idea of rights for creatures that are not able to deliberately exercise the powers derived from a right in question. Thus animals, due to their cognitive limitations, are essentially unable to act as proper right-holders (along with infants, foetuses, patients in a permanent vegetative state, the dead or future generations). Being an beneficiary of duties imposed on others is not the same as being the holder of one’s own subjective right. This objection to the idea of animal rights may be called an ‘argument from conceptual incoherence’. Under the interest theory of rights, in order to be capable of holding rights, it is sufficient that one can be plausibly ascribed with one’s own subjective interests. The concept of interest is to some extent vague and ambiguous, although most authors tend to agree that sentience gives rise to interests relating to one’s own subjective quality of an experienced life.16 It would mean that sentient animals (according to the best scientific evidence available today – at least vertebrates and cephalopods) are capable of having genuine interests, and therefore are capable of being legitimate right-holders should the law decide that their interests are significant enough to give them legal protection in the form of the creature’s own subjective rights. Arguably, however, instead of making the plausibility of the concept of animal rights dependent on the choice between two competing theories of rights, we should rather distinguish between

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The classical advocates of the will theory include C. F. von Savigny, System des heutigen Römischen Rechts, Vol. 3 (Berlin:  Veit, 1840), pp. 5–7; B. Windscheid, Lehrbuch des Pandektenrechts, 9th ed. (Frankfurt.:  Rütten & Leoning, 1906), pp. 156ff.; or H. Hart, ‘Legal Rights’ in Essays on Bentham:  Jurisprudence and Political Theory (Oxford: Clarendon Press, 1982). Interest theory has been developed by e.g. R. Ihering, Der Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwicklung, 5th ed. (Leipzig: Breitkopf und Härtel, 1906), pp. 331ff.; J. Bentham, ‘Anarchical Fallacies’ (1796), in S. Engelmann (ed.), Jeremy Bentham – Selected Writings (New Haven: Yale University Press, 2011), pp. 318ff.; or J. Raz, Morality of Freedom (Oxford: Oxford University Press 1986). See, for example, M. Kramer, N. Simmonds and H. Steiner, A Debate over Rights  – Philosophical Enquires (Oxford: Oxford University Press, 2000). There are also several approaches proposing a combination of both classical theories: see e.g. S. Van Duffel, ‘The Nature of Rights Debate Rests on a Mistake’ (2012) 93 The Pacific Philosophical Quarterly 104–123. See e.g. C. Korsgaard, ‘Fellow Creatures: Kantian Ethics and Our Duties to Animals’ (2004) 24 Tanner Lectures on Human Values, available at: https://dash.harvard.edu/handle/1/3198692; A. Elżanowski, ‘Moral Career of Vertebrate Values’, in M. Nitecki and D Nitecki (eds.), Evolutionary Ethics (Albany: SUNY Press, 1993), p. 259; D. DeGrazia, Taking Animals Seriously – Mental Life and Moral Status (Cambridge: Cambridge University Press, 1996).

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two kinds of rights.17 Some rights are meant to protect the interest of a right-holder – to a large extent irrespective of his or her own will. Others exist mainly as right-holders’ powers to intentionally control their own legal situation composed of the duties of others. Sentient animals, as subjects capable of having their own interests, may be fully legitimate holders of the first kind of rights (let’s call them ‘interest rights’) while many other rights (‘choice rights’) remain inappropriate for their biological nature and capabilities. If I am right, it would mean that the argument from conceptual incoherence is valid only in respect of numerous choice rights, but flawed in respect of certain basic interest rights.

18.3 The Moral Dimension of an Animal’s Status: The Revolutionary Nature of an Animal as a Subject of Rights The fact that animals may be considered as legitimate holders of only those rights that protect interests, rather than those concerning the free exercise of will, leads to some additional difficulties. The well-known problem of the concept of rights as the legal protection of interests (and thus the problem haunting the respective theory of rights) is the relation between right and duty: namely, how conferring a right, if it boils down to the benefit of having one’s interest protected by law, may actually differ where one is just the beneficiary of someone else’s duty? In that case, can all rights be fully translated into a set of corresponding duties imposed for the sake of some interests of others? What about examples of rights that do not serve any demonstrable interests of their holders? What about benefits obtained through the fulfilment of duties by those who are not regarded as legal right-holders? This line of argument raised against the interest theory of rights as such may be – and often is  – easily adapted against the idea of animal rights too.18 According to this view, any ‘rights talk’ in respect of animals is at best superfluous, since exactly the same effects are achievable by imposing duties on those human beings on whom an animal actually depends. To confer a ‘right’ on an animal, so the argument goes, is another (though more vague and ambiguous) way to describe subjecting other persons to duties of carrying out or forbearing from carrying out certain acts for the sake of the welfare of an animal. The idea of rights in this context may therefore be redundant, as the concept of a right adds nothing of any value to the proper description of the actual legal situation of an animal defined entirely by human duties. Nor does it enhance the actual level of protection of animal welfare, since an animal is unable to claim its own ‘right’ and is fully dependent on the fulfilment of duties by the relevant human agents. All desired and feasible normative consequences may be achieved by operating with duties, rather than introducing a vague and doubtful category of animal rights. We may call this approach ‘an argument from redundancy’. This argument is, however, based on a tacit assumption according to which rights talk is nothing else (and nothing more) than a purely technical question of how to describe the relationship between those who are bound to behave in a given way and those whose interests are to be addressed by such obligations. In other words, it relies on an extremely thin concept of what legal rights are and what role they play in the legal discourse. This crucial assumption of the 17

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For a wider elaboration of this idea, see T. Pietrzykowski, ‘Beyond Personhood: From Two Concepts of Rights to Two Kinds of Right-Holders’, in T. Pietrzykowski and B. Stancioli, New Approaches to Personhood in Law: Essays in Legal Philosophy (Frankfurt: Internationaler Verlag der Wissenschaften, 2015), pp. 147ff. This line of thinking relies mainly of will theory of rights distinguishing between duties towards somebody and the holding by the latter of his or her own right. Furthermore, it may be also inspired by Kant’s idea of indirect human duties towards animals, being in fact the duties towards other human beings rather than animals themselves.

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argument of redundancy seems to me to be incorrect and fails to recognise the significant moral load of granting at least some fundamental rights. There are cases where the point of conferring basic rights is actually the recognition and appreciation of the legal relevance of those who used to be deprived of any legal value whatsoever (as in granting equal status to some classes of human persons previously denied the status of legal subjects, such as slaves, women or infants). Thus, the actual importance and point of granting certain rights may not be limited to their direct and precise legal consequences, but rather lie in actually making the interests of a given class of creature matter legally. This is particularly clear in cases in which granting some fundamental rights implicates the recognition of their holders as creatures whose existence and interests deserve to be taken into account by law. This is exactly the case for animals and their basic rights, as they have been traditionally regarded as mere things whose well-being is morally and legally irrelevant. Therefore, at least some rights seem to have this kind of robust moral implication, making them more than a pure technical alternative to imposing a set of duties on other persons. An adequate description of the rights requires a much thicker concept of legal rights than the one assumed by the argument from redundancy. It does not mean that each case of granting a right has equally important moral aspects. Some rights may just be a convenient way of creating specific normative consequences without more fundamental ethical implications. However, from a moral perspective not all rights are created equally. Some may certainly be much thicker than others. The flaw in the argument from redundancy demonstrates, at the same time, why a somewhat contrary argument is also mistaken. The latter argument claims that granting rights to animals is by no means revolutionary, because the law traditionally confers rights not only on people but also on various kinds of other entities, such as corporations, ships, states, municipalities and other kinds of juridical persons.19 In view of that, granting rights to animals would not mean any substantial change in the conceptual foundations of the law. It would simply be the construction of one additional kind of juridical person besides the many that already exist. An ‘argument from triviality’ of animal rights, as it may be called, turns out to be flawed for similar reasons to the argument from redundancy. Each legal order is based on a set of metalegal presuppositions that include ontological, epistemological and ethical beliefs prevailing in the society in which a given law operates.20 They belong to a legal culture in which norms of positive law are embedded.21 Thus, all such presuppositions may together be called the philosophy of a given law or – strictly speaking – philosophy underlying the given legal order. Without taking into account such metalegal beliefs, the content of the rules of the law in force could be unintelligible and unexplainable. Most such presuppositions are what in a given time is taken so much for granted that they constitute platitudes hardly noticeable by the participants of the legal system. Their role and relevance for the law’s rationality may be captured much more easily from an external perspective, in particular from further cultural or temporal distance. Examination of ancient laws regarding family relations, slaves, rituals or punishments, for example, may show that to us they 19

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As Kelsen famously argued, all cases of personhood in law, including treating human beings as persons, are ultimately conventional statuses created and granted by law. In this sense, there is no basic difference between granting juridical personhood to human or non-human subjects: see H. Kelsen, Reine Rechtslehre (Vienna: Franz Deuticke, 1960), pp. 176ff. On the presuppositions of legal texts, see generally R. Sarkowicz, Poziomowa interpretacja tekstu prawnego (Levels of Interpretation of Legal Text) (Cracow: Jagiellonian University, 1995). On the concept of legal culture, see e.g. D. Nelken (ed.), Comparing Legal Cultures (Aldershot: Dartmouth, 1996).

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are demonstrably irrational from the perspective of what we take as platitudes determining our own contemporary Western legal systems. Nonetheless, most of those laws turn out to be perfectly reasonable when looked at from ‘inside’ a given legal cultural background, namely from the point of view of the metalegal, philosophical beliefs predominant in the society in which the law in question was operating. Taking this into account, one should be aware that a certain kind of human exceptionalism (which may be called juridical humanism or anthropocentrism) belongs to the presuppositions that have constituted the very core of Western legal culture for centuries.22 Law is conceived as an essentially human institution, not only in the sense that it has been developed and carried out by people, but also that it exists for and serves exclusively the interests of people. It was perhaps most succinctly encapsulated by the famous Roman jurist Hermogenianus, who wrote: ‘hominum causa omne ius constitutum sit’ (human cause is constitutive for all laws).23 Juridical humanism is not incoherent with the personhood of artificial entities such as corporations, states or other types or organisations. They are treated by the law as separate persons ultimately in order to better address certain needs and goals of human beings. In other words, their legal personhood is secondary in relation to the recognition of human beings as natural persons in law. Their recognition is based not on the reasons of the basic moral desert, but is rather an essentially pragmatic and instrumental attempt to let people strive collectively for some of their common objectives more effectively, in a more organised and ordered manner. Therefore, despite a superficial analogy or symmetry between the ‘natural’ personhood of human beings and the ‘artificial’ personhood of various kinds of organisational entities, they differ fundamentally. Only people (at present – as opposed to many past epochs – principally all people) belong to the legal community and possess interests that are believed to be of intrinsic relevance for the law. Other entities may matter if the law-maker finds their separate juridical personhood useful to promote some kind of human good. I believe that the idea of granting rights to animals should be seen from this perspective. It is not meant to establish an additional type of artificial juridical person (besides corporations, ships, states or associations). It aims rather at recognising animals as creatures whose own interests are so significant morally that there are compelling ethical reasons to turn these interests into legally protected rights held by each individual animal. As opposed to a typical justification of juridical personhood, the grounds for attaching rights to animals are intrinsic, ethical and fundamental rather than pragmatic, technical and secondary.24 In this sense, the rights to be granted to animals are meant to be genuinely basic rights of creatures who deserve to have them protected by law, and not mere instruments of the more effective pursuit of some human goals and interests. On the contrary, animal rights arguably would essentially become constraints on human beings’ liberty to pursue their own interests and the ways in which those interests may be achieved. Thus the idea of animal rights may actually become one of the most important and profound shifts in the paradigm of philosophical underpinnings of the law. That is why the argument from triviality essentially misses the point.

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For a wider elaboration of the idea of juridical humanism, see T. Pietrzykowski, ‘Law, Personhood and the Discontents of Juridical Humanism’, in T. Pietrzykowski, B. Stanciolli (eds.), New Approaches to Personhood in Law (Frankfurt: Internationaler Verlag der Wissenschaften, 2015), pp. 25ff. Digesta, 1.5.2. See e.g. D. DeGrazia, Animal Rights  – A  Very Short Introduction (Oxford:  Oxford University Press, 2002); Wise, Rattling the Cage; Francione, Animals as Persons; S. Stucki, Grundrechte für Tiere (Baden-Baden:  Nomos, 2016) pp. 123ff.

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18.4 Rights between Personhood and the ‘Subjecthood’ of Animals According to the well-known jurisprudential approach, the relationship between rights and personhood is conceptual and inherent. To be regarded as a person in law means to be capable of holding rights or duties. On the other hand, everything deprived of that capability remains merely an object, not a subject of legal relationships (even though it may have some instrumental value and protection against unlawful damage). Opposition between persons and things stems from Roman legal tradition. In a famous statement in his Institutes, Gaius points out that: ‘All our law concerns either persons or things or actions (Omne autem ius quo utimur vel ad personas pertinet vel ad res vel ad actiones)’.25 Following this principle, legal thought has come to identify subjecthood in law with the status of a person. In other words, in order to be capable of holding rights or duties, one has to legally be a person instead of a thing. As long as this conceptual framework remains upheld, the question of animal rights is inherently linked to the question of animal personhood. There are at least four major approaches to the idea of animals as persons in law – that is as entities capable of holding rights (known as the legal personification of animals). The first is sceptical and claims that because animal rights implicate animal personhood, the former should be disqualified. Animals may become declared ‘not-things’ (and hence dereified) in order to recognise the moral significance of their existence and well-being, but they must not be legally personified. The reasons for rejecting animal personhood are diverse, ranging from metaphysical (a unique human dignity that makes people substantially different and solely deserving of recognition as persons) to empirical (the actual biological nature of animals makes them unable to exercise legal rights).26 This view seems prevalent in the contemporary jurisprudence and reflects the current shape of legal regulation even in the most developed legal systems. The second approach is in some ways equivalent to the argument from triviality of animal rights. It does not consider granting legal personhood to animals as any real problem because of the fact that the law recognises a wide variety of entities as artificial, juridical persons. Therefore, non-human personhood is an institution that the law is well familiar with. Extending the range of entities regarded as artificial, non-human persons does not mean any breakthrough in the conceptual framework of the law. It is a question of the law-makers’ will and the balance of reasons for and against granting animals particular legal status. However, there are no fundamental obstacles to the law of recognising animals as an additional kind of juristic person in addition to corporations, ships, inheritances, cities or other extraordinary objects.27 This approach, however, is the equivalent to the argument from triviality of animals’ rights and is vulnerable to exactly the same objections. The next two approaches are relatively recent conceptions that are being developed in legal theory. The first one claims that the traditional legal view on personhood needs profound reconsideration. It is not the case that only persons can hold rights and that the former is a necessary precondition for the latter. We should rather perceive rights, as well as other kinds of entitlements or burdens, as ‘incidents of legal personality’ that admit of degrees.28 In comparison with 25 26 27

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Institutiones, I:II. See e.g. R. Scruton, Animal Rights and Wrongs (London: Metro, 2000). The famous argument of this kind for granting legal status to natural objects was proposed by J. Stone in his 1974 essay Should Trees Have Standing?(Los Altos: W. Kaufmann). Of note, in 2012 New Zealand’s law granted juristic personhood to River Whanganui as a means of resolving one of the longest and most difficult legal conflicts with local indigenous tribes: see e.g. A. Hutchinson, The Whanganui River as a Legal Person’ (2014) 39 Alternative Law Review 179. V. Kurki, ‘Why Things Can Hold Rights: Reconceptualizing Legal Personhood’, in V. Kurki and T. Pietrzykowski (eds.), Legal Personhood: Animals. Artificial Intelligence and the Unborn (Cham: Springer, 2017), pp. 83ff.

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full-fledged persons in law, some beings, such as human foetuses or non-human animals, are conferred by law with only few such incidents. But legal personality is ultimately a cluster of its incidents and as Visa Kurki claims: we should distinguish legal personality with regard to a particular incident or set of incidents from legal personality tout court, without qualifications.

As a result, there is no clear-cut threshold between persons and non-persons, since the latter – even if not formally conferred with personhood – may also hold some rights as their particular incidents of legal personality. The second of these novel approaches argues that the weak point of the standard account of personhood as a necessary precondition to holding any rights or duties is rather a conceptual identification of personhood and subjecthood. In other words, what seems questionable is the assumption that personhood is the only possible form in which subjecthood may and should be legally recognised. According to the present, standard conceptual framework of jurisprudence, if a given being does not fit into the category of a person, it must remain a mere object, a thing. However, there are classes of creatures – such as sentient animals (and possibly some others, for example human embryos) that suit neither the category of persons nor things. They lack the qualities enabling them to hold most kinds of rights, in particular typical choice rights, but may have their own subjective interests that hardly deserve to be ignored. It implies that a new category of non-personal subjects of law should be distinguished to fill the gap between full-fledged personhood and mere ‘thinghood’. It should reflect the crucial moral difference between being an object and a subject of rights, while at the same time remaining distinct of what we are used to conceiving as a person in law. Hence, in view of the robust empirical evidence, some animals possess qualities that make them suit such an intermediate legal category. This category would capture the actual condition of creatures that are subjects of their own interests, but remain unable to hold typical rights attached to persons. The proper solution is neither to maintain the status quo nor to try to pack them into the category of persons, but rather to develop an intermediate category of non-person subjecthood. According to this approach, the legal subjects of a non-personal kind should be granted just one, single legal right – as one may call it – the right to be taken into account (or to put it more precisely, the right to have their vital interests taken into consideration in all decisions that may substantially affect them).29 Holding such a right should trigger corresponding duties on the side of legislature (to take into account respective interests while drafting laws) as well as ordinary legal persons (to treat animals in a way that respects that right). The content of the right to be taken into account must depend on the particular kind of animal in question as well as on the situation in which an individual animal finds itself, and (as with almost all legal rights) must be balanced against other rights and interests.30 The interest of an animal may be outweighed by 29

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For a more detailed elaboration of the concept of a right to be taken into account, see T. Pietrzykowski, Personhood Beyond Humanism: Animals, Chimeras, Autonomous Agents and the Law (Cham: Springer, 2018). It seems that such a way of conceptualising an animal status in law could accommodate the ethical ‘capabilities approach’ proposed by M. Nussbaum much more easily than the traditional idea of legal personification of animals, which implyies granting them a list of rights modelled on the basic human rights. On the ‘capabilities approach’, see M. Nussbaum, ‘Capabilities Approach and Animal Entitlements’, in T. Beauchamp and G. Frey (eds.), Oxford Handbook of Animal Ethics (Oxford: Oxford University Press, 2011), pp. 228ff. It could also allow relative flexibility when adjusting local legal arrangements to the changing standards of global animal law. On the concept of the latter, see A. Peters, ‘Global Animal Law: What It Is And Why We Need It’ (2016) 9 Transnational Environmental Law 9.

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competing considerations, but must not be simply disregarded. As in all cases of legal balancing, its effects have to meet the requirements of the general test of proportionality. The distinction between personhood and non-personal subjecthood is to some extent similar to the idea of reconceptualising legal personhood into particular incidents of legal personality that may be present without recognising an entity as a legal person tout court. Nonetheless, it assumes that the law  – at a conventional level  – needs to operate by at least relatively clear, general categories, even if the reality covered by them is continuous and fluid. Therefore, it is necessary to define the legal status of animals in order to make the difference between it and the status of a thing or a person relatively clear-cut. Furthermore, I  believe that the distinction between objects and subjects capable of being protected by their individual right being taken into account is also critical from the point of view of the moral foundations of the legal order. Recognition of some set of basic ‘incidents of personality’ should be a normative consequence of acknowledging and defining the proper legal status of animals as creatures whose subjective well-being matters morally for its own sake, and which implicates some duties on human societies that have gained almost total domination over their lives. The need to adjust the moral basis of the legal order to our current empirical knowledge and its profound ethical implications is a strong reason for developing a separate status of nonpersonal subjects of law located between things and persons rather than continuing to regard animals as things, even if attached with some particular rights as their exceptional ‘incidents of personality’.

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19 Sentience, Form and Breath Law’s Life with Animals Yoriko Otomo

19.1 Introduction We can track a shifting jurisprudence regarding animals over time and across Europe. It tends to reflect the ongoing struggle between church and state, country and city, coloniser and colonised, ruling and working class, masculine and feminine. This is a struggle for jurisdiction over the bodies of animals – I am thinking here of, for example, the medieval animal trials documented by E.  P.  Evans, and of the numerous tort and property law cases that have involved animals throughout the early and late modern period.1 We could also look to hunting laws, farming laws, animal welfare laws and others for indications as to changing views over time in relation to certain species and uses of animals. When we do, it becomes evident that our governance of animals has very little to do with specific animals themselves and everything to do with the political economies of humans. Who is allowed to do what, with which animals? For what purpose are the jurisprudential categories of sacred (e.g. ‘endangered’ and sacrificial) and profane (domestic/livestock and consumable) created? And in turn, how do these categories – by defining animals – create a separate ontological domain for ‘humans’? For all legal theorists and legal anthropologists, ‘animal jurisprudence’ is therefore key to understanding the limitations and potential of what it means for us to be human. And for legal scholars thinking about what it means to have human rights, it is critical to look at how we talk about ‘animal’ rights. There are many different angles from which we could look at ‘animal rights’. We could look, for instance, at what social, ideological and economic conditions are required for certain animals to be granted certain protections or controls. We could look at the rhetoric surrounding the regulation of certain species. We could look at how the segregation of animals into different spaces has changed over time and in different jurisdictions. In the preceding chapter, Tomasz Pietrzykowski focuses on the juridical forms that animals have taken (i.e. the different legal statuses they have had) in courts in the post-industrial Western legal context.2 In this brief conversation with his 1

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E. P. Evans, The Criminal Prosecution and Capital Punishment of Animals (London: W. Heinemann, 1906). For an excellent reading of an animal trial, see for example E. Mussawir, ‘By the Hands of Rhea: Notes on the Juridical Meaning of the Bear’ (2015) 40 Australian Feminist Law Journal 229. It is important to remember that the animal (and human) ‘rights’ debates come from a very specific legal tradition that has become dominant in the global public domain by virtue of imperial history (the spread of English as a primary language in the twentieth century and the claim of international law to being a universal regulatory framework). This says nothing about the long histories of jurisprudence in both Western and non-Western cultures that govern the relationships and distinctions between humans and non-humans: see for example B. Bodart-Bailey, The Dog Shogun: The Personality and Policies of Tokugawa Tsunayoshi (Honolulu: University of Hawai’i Press, 2006).

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work I therefore look at his key arguments and then consider their implications for ‘human’ and ‘animal’ rights. In Section 19.2 I engage with Pietrzykowski’s discussion of animal sentience. In Section 19.3 I examine his suggestion for a new juridical form pertaining to animals, that of ‘nonpersonal subjects of law’. In Section 19.4 I suggest alternative ways of thinking about animals in the law, namely through the idea of breath and breathing. A radical departure from our investment in fictional legal forms, and a move towards recognising the material reality and moral complexity of living in an entangled world, is the only solution for an embattled secular law.

19.2 Sentience Science and Western ethical philosophy have since the Enlightenment period looked to sentience (pain, consciousness, self-consciousness) to furnish arguments supporting a hierarchical ontology among living beings. Not only a hierarchy – let us be clear – but an ontology that has sought to maintain a mish-mash of pre-Enlightenment taxonomies about stones, plants and animals.3 By using the morally inflected language of consciousness, humans have also been elevated and separated away from the material world altogether, placed in an inviolate category of being that itself justifies the continued application of a magical notion called ‘right’.4 Thus, English, European and colonial jurisprudence have created a global epistemic community that draws the ontological boundaries of what can be considered ‘human’ – and what cannot. As scientific tests for sentience have been applied to growing categories of non-human animals and finding that they are indeed sentient, it has become increasingly uncomfortable for lawyers who have had to create convoluted legislative and judicial reasoning in order to hold together a metaphysics that has come away from empirical knowledge and public opinion.5 In terms of ‘animal rights’, the legal profession faces a particular challenge.6 In the postSecond World War era it has been precisely the unalienable ‘rights’ – to life and liberty – that have been denied to non-humans, and so it feels disingenuous to begin using the language of right in relation to animals. And then of course, the question of what constitutes an animal, and which animals will get rights, remains on the horizon. Various categories of animals have historically been afforded ‘welfare protection’, which again is a counter-position, rather than a subset, of ‘animal rights’. This is because the specific provisions of welfare laws – even the most far-reaching – determine the conditions of animal captivity and killing, rather than outlining the conditions of freedom.7 Laws certainly make no provision for restitution or compensation for

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For an interesting collection of essays on this topic, see M. Senior (ed.), A Cultural History of Animals in the Age of Enlightenment (Oxford: Berg, 2007). There is no space here to discuss the long history of natural and legal rights, or alienable and inalienable rights – suffice it to note that the question of whether or not non-human animals have natural rights has been a long-standing one, and that part of the reason behind a shifting animal jurisprudence has been political sparring between churchbased and non-church-based powers, as well as ruling and non-ruling classes. For examples of a growing body of scientific evidence on animal sentience, see the journal Animal Sentience: An Interdisciplinary Journal on Animal Feeling. I have described this struggle at length elsewhere with E. Mussawir, ‘Introduction’, in Y. Otomo and E. Mussawir (eds.), Law and the Question of the Animal:  A Critical Jurisprudence (Abingdon:  Routledge, 2013), p.  1, and A.  Philippopoulos-Mihalopoulos, ‘Making Lawful Animals’, in A. Philippopoulos-Mihalopoulos (ed.), Routledge Handbook of Law and Theory (London and New York: Routledge, 2019), chapter 15. For a more extended discussion of animal welfare and protection, see for example Y. Otomo, ‘Law and the Question of the (Non-Human) Animal’ (2011) 19 Society and Animals 383. This conundrum is a familiar one to feminists, who need to decide whether strategically it is better to seek incremental improvements in their conditions of social and political life (which has the effect of validating fundamental principles of hierarchical heteronormativity etc.) or to seek radical revision of gender relations.

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animals themselves, let alone providing for any of the other basic freedoms assigned to universal humans: freedom from cruel treatment; freedom from slavery; freedom to maintain a family life; freedom of expression; freedom of peaceful assembly; and freedom from discrimination. It is therefore understandable why ‘animal rights’ have never been a central and serious subject of discussion for lawyers, since such a consideration would require a wholesale review of how we think about law. This is not to say that it should not become one. In his chapter, Pietrzykowski gives us an overview of the current debates on animal rights within legal theory. He begins by telling us how the proposal for animal rights has been driven, in part, by scientific discoveries of animal sentience and consciousness, and he also describes the gradual movement of animals in legal regimes around the world out of the category of res (things). Canvassing specific cases such as a provincial court case in Argentina where an orangutan was found to be a ‘holder of rights’, Pietrzykowski concludes that such cases have had limited impact on the development of animal law in the domestic and international domains.8 Pietrzykowski’s analysis is disappointing for animal rights campaigners, if unsurprising. Rights discourse has been such a closely contested legal landscape for decades that any recognition and implementation of specific rights by the legislature would bring with it the baggage of obligation and restitution, having wideranging economic, social and political impacts. This could well be said of many of the human rights too, of course, and the difference (of degree) lies in the fact that non-human animals are largely and conveniently consigned to an ontological domain which in turn creates a reassuring one for humans.

19.3 Form Acknowledging that it is indeed revolutionary for courts to ascribe rights to animals, Pietrzykowski goes on to look at existing theories of rights. He outlines two main competing theories: first, the ‘interest theory’ whereby the interests of the animal in question are protected by law, and second, the ‘will theory’, whereby the rights of the animal in question are protected through the exercise of their free will.9 He argues that it may be possible to ascribe sentient animals as having genuine interests. He says that the ‘will theory’ is not a plausible basis as most animals do not have the cognitive capacity to express and exercise their will. This is perhaps too broad a conclusion as the ability to exercise power (or our capacity to perceive a will to power) surely depends on the context, act and species of animal. In any case, Pietrzykowski suggests that the will theory, together with the interest theory of rights, both impose duties upon humans and rely entirely upon them for effecting those rights, since animals themselves cannot claim rights. Pietrzykowski then reflects on other potential values that conferring rights on a class of being may have. He argues that ‘granting certain rights may not be limited to their direct and precise legal consequences, but rather lie in actually making the interests of a given class of creature matter legally’.10 The ‘grounds for attaching rights to animals are intrinsic, ethical and

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Cámara Federal de Casación Penal (Argentina), 18 December 2014, CCC 68831/2014/CFC1, Orangutana Sandra s/recurso do casación/ s.Habeas Corpus. There are other significant animal rights cases not discussed in the previous chapter – see for example C. Barbato Bevilaqua, ‘Chimpanzees in Court: What Difference Does It Make?’, in E. Mussawir and Y. Otomo (eds.), Law and the Question of the Animal: A Critical Jurisprudence (Abingdon: Routledge, 2013), p. 71. In recent years, the New Zealand government declared that the Whanganui river be granted the same status as a living entity with full legal rights and an Indian court followed suit, declaring that the Ganges and its main tributary, the Yamuna, be accorded the status of legal persons. Pietrzykowski, in this volume, pp. 246f. Ibid., p. 248 (emphasis added).

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fundamental rather than pragmatic, technical and secondary’.11 He recognises the importance of form for creating a legal culture and for shaping social norms; this is an ephemeral but helpful approach for thinking about strategies for law reform. Pietrzykowski next lays out the main approaches for thinking about animals as persons in law (entities capable of holding rights). The first approach rejects the idea of animal personhood on the basis that while they can be dereified (taken out of the category of ‘things’), they cannot be personified since they do not have the physical or metaphysical characteristics of humans, who are the measure of personhood. This is the dominant approach taken currently in most legal systems. The second is that there is no obstacle to animal personification per se because many non-human entities are granted legal personality, but this does not guarantee any substantive protection for animals. The third approach is that personality is a matter of degree – from things, which have no rights, to persons, who can fully hold rights. This approach, he explains, conceives of rights as ‘incidents of personality’ whereby entitlements and burdens would attach to animals on a case-by-case basis and as a matter of degree. Pietrzykowski does not comment on this approach at length, and I propose that it is one that resonates with jurisprudence in some of the medieval animal trials and may be of value in pursuing further. Finally, Pietrzykowski makes an important proposition, which is that most sentient nonhuman animals do not fit neatly in either the category of persons or of things. This, he argues, implies that there should be created an intermediate category, of ‘non-personal subjects of law’.12 He suggests that these non-personal subjects of law should be granted one fundamental right: the right to be taken into account, or, as he puts it, ‘the right to have their vital interests taken into consideration in all decisions that may substantially affect them’.13 In practical terms this requires, he says, that the interests of animals be balanced against other rights and interests, and that while they may be outweighed, they may not be disregarded. This argument is a sensible and strategically viable one, given that it would affect both the form of current jurisprudence (placing the existence of animals on the scales) and offering flexibility to the courts to move with the pace of social change. I suggest that ‘taking into account’ an animal does face significant hurdles in the form of a series of prior questions: it would require the determination of what does and what does not constitute an animal; how it is to be valued; determining what its interests are or what a ‘good’ is to that animal, and finally, making a decision based on a proportionality test. This whole process may be legally coherent but is likely in practice to constitute a rather low bar, resulting in something like the regime of animal ‘welfare’ laws which we currently have, which effectively legitimise the slaughter of over 60 billion land-based food animals a year.14 To put the stakes of this discussion into context: the planet has so far witnessed five major mass extinctions where over 75 per cent of species were lost (probably due to rapid climatic change), the first taking place 444 million years ago and the most recent 66 million years ago.15 Our lifetime marks the beginning of the sixth major mass extinction. Over the next three years, the number of wild animals in the world is predicted to fall by two-thirds compared to those

11 12 13 14

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Ibid., p. 249. Ibid., p. 251. Ibid., p. 251. See for example www.animalequality.net/food. This figure does not include the killing of non-food animals or of fish, insects and the multitude of other kinds of creatures and ecosystems that are affected by human activity. G. Ceballos, P. R. Ehrlich and R. Dirzo, ‘Biological Annihilation Via the Ongoing Sixth Mass Extinction Signaled by Vertebrate Population Losses and Declines’ (2017) Proceedings of the National Academy of Sciences of the United States of America 114.

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living in 1970.16 The human urban population is expanding by 1.5 million people every week.17 A third of the world’s fisheries are being fished at biologically unsustainable levels.18 And all this exacerbates climatic change, whose effects compounded by our simple consumption of the earth are so terrifying that we prefer to think of it as a sick joke.19 The pre-industrial world-view that informs mainstream legal debates on rights does not – and cannot – take this material reality into account. Indeed, the twentieth century has been defined by the speed of destruction, through the legalised erasure of res sanctae: things that are sacred, and outside of human jurisdiction. Our obsession with being higher, bigger, faster, our desire to become immortal by leaving the material body altogether, has been driven by our production of metal and plastic and concrete. This is an alchemy that transforms the earth into an unmoving territory upon which our jurisdiction can be exercised. And what an exercise of jurisdiction it is. The imperial history of international environmental law imposes a particular way of seeing the world that flattens out the vast range of different human/animal ontologies in cultures around the world. Buddhist, Islamic, animist and indigenous cultures have so many different ways of thinking about humans, animals and other entities, of elements, of phenomena and of spirit, that have been entirely suppressed in international law jurisprudence. The time has come to look to some of those other ontologies to inform the development of jurisprudence that is more likely to ensure our future survival on earth.

19.4 Breath So what are these different ways of thinking? Let me give you an example. In my home town in Japan there lived an Irish man called Lafcadio Hearn who wrote a book called Ghostly Japan in 1899, a time of rapid modernisation. In that book he wrote about a dog who lived outside his house. He describes how she ‘was welcome everywhere, but owned nowhere’, and how in response to a policeman arriving to put strays to death, the local shopkeepers and priest painted their protective symbols onto her body in calligraphy. And describing the howl of this dog, Hearn writes: It fills me, that cry, with a strange curiosity not less than with a strange horror, because of certain extraordinary vowellings in it which always recur in the same order of sequence, and must represent particular forms of animal speech, particular ideas. The whole thing is a song, – a song of emotions and thoughts not human, and therefore humanly unimaginable. But other dogs know what it means, and make answer over the miles of the night … Possibly they mean things myriads of years old, things relating to odors, to exhalations, to influences and effluences inapprehensible by duller human sense … Could she speak, my dog, I think that she might ask questions which no philosopher would be able to answer … The external world to her is ‘a continuum of smells’. She thinks, compares, remembers, reasons by smells. By smell she makes her estimates of character: all her judgments are founded upon smells. Smelling thousands of

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World Wide Fund For Nature (WWF), 2016 Living Planet Report, available at www.wwf.org.uk/sites/default/files/ 2016-10/LPR_2016_summary_spread%20low%20res.pdf. See for example data held by the World Health Organization (WHO): www.who.int/gho/urban_health/situation_ trends/urban_population_growth_text/en/. See Food and Agriculture Organization (FAO), The State of World Fisheries and Aquaculture (Rome: FAO, 2016). Some of the material in this paragraph has previously been published online:  Y. Otomo, ‘The End of the City and the Last Man’ on the blog ‘Critical Legal Thinking’, 6 December 2016, available at http://criticallegalthinking .com/2016/12/06/end-city-last-man-urban-animals-law/, and in ‘The End of the City and the Last Man’ (2016) 42 Lo Squaderno: Explorations in Space and Society, available at www.losquaderno.professionaldreamers.net/?p=1713.

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things which we cannot smell at all, she must comprehend them in a way of which we can form no idea.20

We understand, of course, exactly what Lafcadio Hearn is telling us about animal difference, just as we understand when indigenous Aboriginal groups describe elements of the landscape as being ancestors, or when others tell us that they belong to a place, rather than a place belonging to them. It is possible  – looking at some of the more recent decisions that grant rivers legal personality – that some courts are open to thinking of certain entities as neither a person nor a thing, but of something in between, as suggested by Pietrzykowski. Rivers, however, are not as demanding as non-human animals in the sense that we humans are far more immediately dependent upon their ecological functions for our own survival. The test for a plausible animal jurisprudence surely lies in whether or not courts have – and will exercise – judicial power to grant protection to individual animals. Because of our immense poverty of legal rhetoric and timidity of spirit (perhaps our fear, too, of other more ancient legal paradigms), we are yet to accommodate species difference in law. I suggest that one way of doing so is to focus not on ghostly forms of law (on kinds of personhood), but on a specific capacity such as breath.21 Breathing – howling, smelling, metabolising, moving – and the need for the conditions for breathing well, may be a useful test for courts to adopt when considering how to govern the relationships between humans and non-humans.22 Returning to Pietrzykowski’s chapter, I do find his suggestion that animals be designated legal subjects of a non-personal kind intriguing, as it opens up a vista through which we might think about subjectivity differently. This is not only fantastical but necessary if we are to consider that animals are not only performing bears and elephants, but also coral, blue whales, tardigrades and seven million other species of living beings, of which we are merely one. If our task as lawyers and legal scholars is to take care of our communities by creating rules of conduct, there is a great deal we can look to for inspiration aside from the language of animal rights, and without having to shoehorn our current crisis of planetary relations into our current culturally contingent set of legal regimes. Pietrzykowski’s invitation to open up the existing animal rights debate, and begin to create new ways of engaging with animals in law, is a welcome and timely one. I hope that it will also provoke human rights scholars to think through these questions together in the future.

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L. Hearn, Ghostly Japan (Boston, MA: Little, Brown and Co., 1899), p. 32. Thank you to Caroline Godart, Mark Antaki and Andreas Philippopoulos-Mihalopoulos for our conversations on being and breath. On breath and difference, see for example L. Irigaray and M. Marder, Through Vegetal Being: Two Philosophical Perspectives (New  York:  Columbia University Press, 2016), and A.  Philippopoulos-Mihalopoulos, ‘The Funambulist Atmosphere’, The Funambulist Papers No. 29, available at https://thefunambulist.net/philosophy/ guest-writers-essays-29-the-funambulist-atmosphere-by-andreas-philippopoulos-mihalopoulos.

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20 The Right to Internet Access Quid Iuris? Oreste Pollicino

20.1 Introduction When dealing with the issue at the heart of this chapter, a fundamental question has to be tackled in greater depth: is the right of access to the Internet a human right (or a fundamental right  – below is my attempt to introduce a terminological clarification in this regard) which enjoys semantic, conceptual and constitutional autonomy? In other words, is access to the Internet an autonomous right or only a precondition for enjoying, among other rights, freedom of expression?1 Why does the classification as a free-standing or derived right matter? Does it carry normative implications or is it primarily a rhetorical tool? In trying to answer those questions, it may perhaps be beneficial to resist the temptation to rely on a ‘rhetoric’ of fundamental rights and human rights, which has been widespread throughout the various debates concerning the relationship between law and technology since the rise of the Internet. The language of rights (especially new rights) in internet law is more than (rhetorically) appealing. The real question is whether the proliferation and flourishing of rights and covenants (subject to multilevel protection at constitutional, EU and European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)2 levels together with the growing number of ad hoc Internet bills of rights) is generally achieving the result of a higher protection of the rights in question;3 or if, paradoxically, the result of increasing the number of rights, by consequently amplifying the risk of constitutional collisions, is ultimately leading to a decrease in the protection of the rights in question. In order to answer the above-mentioned questions, this chapter is divided into two main parts. In the first part a description of the status quo with regard to the emergence, at international and constitutional levels, of a right to internet access as an autonomous right, or by contrast, just as a projection of the existing rights, is provided. The second part will focus, first, on the ‘ordinary’ protection of a right of access to the Internet as, precisely, an ‘ordinary right’, beyond any human or fundamental rights-based rhetoric. Second, it will be questioned whether a constitutional injection of autonomy of internet access

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Among commentators, V. G. Cerf, ‘Internet access is not a human right’, New York Times, 4 January 2012, claimed that technology is an enabler of rights, not a right itself. European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, in force 3 September 1953, ETS No. 005. For some comments on this trend, see O. Pollicino and G. Romeo (eds.), The Internet and Constitutional Law: The Protection of Fundamental Rights and Constitutional Adjudication in Europe (London: Routledge, 2016).

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as an autonomous and free-standing right would be beneficial, taking as an example the attempt to modify the Italian Constitution by specifically adding internet access as the content of a ‘new’ fundamental right. The final remarks will be devoted to letting some guidelines and indicators emerge which could suggest, also from a (constitutional) policy-making point of view, how a provision related to the right to internet access should be shaped and drafted in order to represent an effective added value, and not just be located in an ancillary as well as an unhelpful position in respect of the connected traditional rights – first and foremost, freedom of expression.

20.2 The Right to Access the Internet: Its Main Features in International Law and Constitutional Law The first part of this chapter will try to answer a specific research question, also outlined as one of the main research questions: is the ‘new’ right to internet access currently legally recognised, and on what basis and at what level? In other words, when international law or constitutional law deal with the right to internet access, is the latter ‘treated’ as a disconnected Socratic participation in the information society and thus totally autonomous, or is it, by contrast, seen as part of a more general human/fundamental rights narrative? In order to try to answer the question, it may perhaps be useful to consider the effective framing of this right along with its justiciability from international and comparative constitutional perspectives. Such an examination should be anticipated by a simple differentiation, which does not seem so obvious when the debate is focusing on the nature of the right to internet access: the difference between human rights and fundamental rights.4 Too often the right of access to the Internet is qualified indifferently as a human right or a fundamental right. Despite the evident crossover and overlapping between the notion of human rights and that of fundamental rights,5 it is undeniable that, whereas the latter speaks the language of constitutional law, the former (also) speaks the language of international law. Fundamental rights are awarded through the state’s constitution, and their enforceability through constitutional courts (among other avenues) embodies the quintessence of constitutionalism: limiting government and ensuring that rights and freedoms protected by the constitution are not ‘drained’ by the possible abuse of power. Human rights are those rights that each human being should have and which are protected by virtue of global or regional international law through covenants or conventions, but not always by courts.6 In other words, there could be a judge who has the mandate to judicially enforce the human rights in question, but the judicial enforcement is not ‘by design’ a characteristic of human rights protection, as it often is

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See also X. Wang, ‘Time to Think about Human Right to the Internet Access: A Beitz’s Approach’ (2013) 6 Journal of Politics and Law 67. As Palombella noted:  ‘Generally speaking, human rights are  – or at least one would prefer that they are  – also “fundamental” rights: this should mean that a given society considers the protection of human rights essential. It would appear that, if this is not a tautology, human rights are also fundamental, (if and) because they posit at the basis of our life in common, and they are concretely implemented through the fabric of an organised social system’: G. Palombella, From Human Rights to Fundamental Right:. Consequences of a Conceptual Distinction. European University Institute LAW Working Paper No. 2006/34. As Ignatieff noted, the nature of human rights is universal ‘not in the sense of being a vernacular of cultural prescriptions, but rather as a language for the bestowal of moral power. Their role is not [as in general is for fundamental rights] that of endowing culture with a substantive content but of seeking to condition all actors in such a way that they can liberally fashion that content’: M. Ignatieff, Human Rights as Politics and Idolatry (Princeton: Princeton University Press, 2001), p. 75.

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in the case of fundamental rights protected by constitutions and constitutional bills of rights. Moreover, even in the presence of judicial enforcement under international law (for example, in the system of the ECHR), the state will often be obliged to ‘obey’ the international court ruling only under international law obligations and not also (depending on the rank of the ECHR in the national legal order) under constitutional law obligations (as in the case of rulings of constitutional courts). Against this background, the first question which should be answered is whether the right to internet access is codified as an autonomous human right in international law. More precisely, with regard to the language of international law, various reports have been issued by the United Nations that refer to the Internet as a human right and promote active intervention by public authorities and states in order to achieve access to the Internet for all. The first example is contained in the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression issued on 16 May 2011.7 Paragraph 85 states that: Given that the Internet has become an indispensable tool for realizing a range of human rights, combating inequality, and accelerating development and human progress, ensuring universal access to the Internet should be a priority for all States. Each State should thus develop a concrete and effective policy, in consultation with individuals from all sections of society, including the private sector and relevant Government ministries, to make the Internet widely available, accessible and affordable to all segments of population [sic].

This is not all. Paragraph 87 goes on to establish that: ‘Where the infrastructure for Internet access is present, the Special Rapporteur encourages States to support initiatives to ensure that online information can be accessed in a meaningful way by all sectors of the population, including persons with disabilities and persons belonging to linguistic minorities.’ A similar approach is adopted by the Organization for Security and Cooperation in Europe (OSCE) which, in a 2011 report,8 stressed that: ‘Everyone should have a right to participate in the information society and states have a responsibility to ensure citizens’ access to the Internet is guaranteed.’ From the examples mentioned it seems possible to imply that in international law there is the tendency to look at internet access not as an autonomous ‘new right’ but as part of a right for all citizens to participate in the information society that can be achieved by the possibility for the citizens to have access to the Internet. This also implies active intervention by public authorities, with the result that the scenario involves not only a negative freedom, which requires the public authorities simply to refrain from acting in order so as not to impede individuals from enjoying their rights, but also a positive dimension implying intervention by public authorities. Two aspects in particular are at issue: on the one hand, the social ‘service’ dimension and, on the other hand, access to the Internet as a prerequisite for the exercise of other fundamental rights. In light of the above, the impression is that the right of access to the Internet does not fully enjoy, under international law, the status of an autonomous human right. As was mentioned earlier, it seems that internet access is very often connected to classical rights, representing their digital projection, and is not treated as an autonomous independent right. 7

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HRC, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, 16 May 2011, UN Doc. A/HRC/17/27. OSCE Representative on Freedom of the Media, Freedom of Expression on the Internet: A Study of Legal Provisions and Practices Related to Freedom of Expression, the Free Flow of Information and Media Pluralism on the Internet in OSCE Participating States (Vienna: OSCE, 2012), p. 15, available at www.osce.org/fom/105522?download=true.

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Moreover, there is another reason why the right of access to the Internet as construed within these above-mentioned documents cannot to be framed as a human right in a strict sense, even if these assertions are considered from a typically international law point of view. In fact, it is an essential requirement that a human right must be enshrined in treaties and in treaty laws which not only provide for its exercise but also ensure its enforcement. However, at the international law level provisions of this type are in reality lacking. There are reports, which are undoubtedly important although they cannot be considered to recognise or establish human rights in a strict sense. If anything, they invoke the idea of freedom as being an essential prerequisite for the exercise of other rights, which, as such, must not be impaired. This view may be confirmed by looking at the relevant case law of the European Court of Human Rights (ECtHR). When Strasbourg judges – who surely are not shy when they decide to let new digital rights emerge in the world of bits based on provisions which were obviously framed in the age of the world of atoms – had to face cases clearly connected to the restriction of a right to internet access, they had no doubts about including the latter within the scope of application of Article 10 ECHR.9 In conclusion, as far as the language of international law is concerned, the Internet seems to be considered just as another medium through which freedom of speech or democratic participation in the information society are exercised and protected. With specific reference to freedom of speech, it is undisputable that the latter ‘applies to the Internet, just as it does to other communication media’, as stated in the UN/OSCE joint statement on ‘Challenges to freedom of expression in the new century’ in 2001. The same approach, which can be analysed in the same document, is also shared by other sources,10 among which is the First Principle of the Declaration on Freedom of Communication on the Internet of the OSCE of 2003, according to which ‘Member States should not subject content on the Internet to restrictions which go further than those applied to other means of content delivery’.11 Moving from the language of human rights to that of fundamental rights, as has been mentioned above, the main question is whether, under the perspective of inquiry offered by comparative constitutional law, the right to access could be qualified as an autonomous fundamental right.12 As said above, the fundamental nature of a right emerges, first of all, from its codification at the constitutional level. Only Greece,13 Portugal14 and Ecuador15 seem to have 9

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See ECtHR, Ahmet Yıldırım v. Turkey (Appl. no. 3111/10), judgment, 18 December 2012, and ECtHR, Kalda v. Estonia (Appl. no. 17429/10), judgment, 19 January 2016. OSCE Representative on Freedom of the Media, Joint Declarations of the Representatives of Intergovernmental Bodies to Protect Free Media and Expression (Vienna:  OSCE, 2013), p.  26, available at www.osce.org/fom/ 99558?download=true: ‘States should not adopt separate rules limiting Internet content’. OSCE Committee of Ministers, Declaration on Freedom of Communication on the Internet, 28 May 2003. For more on this, see e.g. T. E. Frosini, ‘Access to Internet as Fundamental Right’ (2013) 6 Italian Journal of Public Law 226. According to Art. 5(2) Greek Constitution:  ‘All persons have the right to participate in the Information Society. Facilitation of access to electronically transmitted information, as well as of the production, exchange and diffusion thereof, constitutes an obligation of the State.’ According to Art. 35 Portuguese Constitution: ‘1. Every citizen shall possess the right to access to all computerised data that concern him, to require that they be corrected and updated, and to be informed of the purpose for which they are intended, all as laid down by law … 6. Everyone shall be guaranteed free access to public-use computer networks, and the law shall define both the rules that shall apply to cross-border data flows and the appropriate means for protecting personal data and such other data as may justifiably be safeguarded in the national interest.’ According to Art. 16 Ecuadorian Constitution:  ‘All persons, individually or collectively, have the right to:  1. Free, intercultural, inclusive, diverse and participatory communication in all spheres of social interaction, by any means or form, in their own language and with their own symbols. 2. Universal access to information and communication technologies. 3. The creation of media and access, under equal conditions, to use of radio spectrum frequencies for the

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codified, at the constitutional level, access to the Internet as a fundamental right in a strict sense. In all three cases the constitutional codification of the right has allowed its emancipation from the scope of protection of freedom of speech. However, it is clear that the constitutional codification of a ‘new’ right does not exclude other paths through which new rights could be afforded constitutional relevance. In this regard, the research question ‘Which of the potential new rights are currently legally recognised, and on what basis?’ should be interpreted in quite a broad sense. More precisely, the process of constitutional judicialisation of the protection of new rights should be taken into consideration as well. Nowadays more than ever courts, especially constitutional courts, from the privileged position of their legal orders, are able to define the risk of potential clashes that may encroach upon the effective protection of fundamental rights between interconnected legal systems. If this holds true generally in times of judicial globalisation, it is even more true when judicial globalisation meets internet law specifically, for at least two reasons. The first reason is substantive in nature and relates to the existing gap between the activities of governments and law-makers and the fast development of new technologies. In this framework, the role of courts is crucial in order to fill this regulatory gap. Actually, this is the main reason, along with the inertia of the legislature on national and supranational levels, why courts increasingly seek assistance and inspiration (and ultimately dialogue) with respect to the protection of fundamental rights on the Internet with courts of different yet interconnected legal orders even more than they used to do in the analogue world. The second reason is procedural in nature and is related to the jurisdictional issues brought up by the rise of the Internet,16 which had crucial implications for the protection of fundamental rights and paved the way for the key role of courts in this new environment.17 Against this background, there is no doubt that the landmark (not only constitutional) judgments which have dealt with the nature of the right of access to the Internet have to be examined. It should be immediately said that in all these cases the right to access the Internet appears to be construed as a typical example of freedom of expression, and almost as an evolution, or in any case a projection, of that right into the innovative technological context. Differently from the constitutional emancipation from free speech, as we have seen above in the express constitutional provisions related to the right to access to the Internet, not much room is left to speculate about a judicial emancipation of the right of access to the Internet from free speech. This was the case, for example, in France where the judgment issued in the Hadopi case18 construed the right of access to the Internet specifically in terms of a corollary of freedom of expression and communication on the Internet. The dispute in this case had arisen in relation to

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management of public, private and community radio and television stations and to free bands for the use of wireless networks. 4. Access and use of all forms of visual, auditory, sensory and other communication that make it possible to include persons with disabilities. 5. Become part of participation spaces as provided for by the Constitution in the field of communication.’ See O. Pollicino and M. Bassini, ‘The Law of the Internet between Globalisation and Localisation’, in M. Maduro, K.  Tuori and S. Sankari (eds.), Transnational Law:  Rethinking European Law and Legal Thinking (Cambridge: Cambridge University Press, 2014), p. 346. See for instance the Yahoo! – Licra saga: Tribunal de Grande Instance de Paris, UEJF and Licra v. Yahoo! Inc. and Yahoo France; Yahoo!, Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme, 22 May 2000, 379F 3d 1120, 1126 (9th Cir. 2004). For some comments see, among others, J. Reidenberg, ‘Technology and Internet Jurisdiction’ (2005) 153 University of Pennsylvania Law Review 1951; M. H. Greenberg, ‘A Return to Lilliput: The LICRA v. Yahoo – Case and the Regulation of Online Content in the World Market’ (2003) 18 Berkeley Technology Law Journal 1191. See Conseil Constitutionnel, 2009–580 DC, 10 June 2009. For some comments, see among others N. Lucchi, ‘Regulation and Control of Communication: The French Online Copyright Infringement Law (HADOPI)’ (2011) 19 Cardozo Journal of International and Comparative Law 645.

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the establishment of an authority charged with monitoring violations of copyright committed by users through peer-to-peer systems and punishing repeat offenders, who were caught unlawfully downloading protected works on three occasions, by disconnecting their access to the Internet. This measure was considered by the Constitutional Council as a disproportionate sanction for users due to the fact that it interferes with their freedom of expression. Indeed, notwithstanding that this case recognised a right of access to the Internet, this right was not framed as an autonomous one but was linked to freedom of expression. That is to say that the Constitutional Council has not recognised a positive obligation for the French government to provide internet connection as a social right, but it has formed a traditional conceptualisation of the right to access the Internet in the framework of freedom of expression, so as part of a negative freedom.19

20.3 Beyond the Human/ Fundamental Rights Rhetoric: A More Pragmatic Approach As noted above, the second part of this chapter will focus on the ‘ordinary’ national protection of the right of access to the Internet. This analysis is not easy because the relevant legal framework and the connected debate among scholars are in a way ‘polluted’ by the rhetoric of human rights and fundamental rights that is so appealing when the relevant playground is the Internet. In this view, in fact, every single favourable position is frequently ranked among human rights, thus making it possible for internet activists to claim a violation thereof any time users come across online restrictions imposed by public authorities. For a long time the Internet has been referred to as a promised land where everyone is entitled to enjoy an unprecedented scope of liberty. Seen in this light, any regulatory measure or legislative intervention was by default labelled as an interference with the freedom of the Internet and a form of censorship. As an example, the 2011 OSCE report affirmed that ‘only 30 per cent of the [States participating in the survey] stated that they recognize access to the Internet as a basic human right or as implied to the fundamental right to freedom of expression’, explicitly referring to the Finnish and Estonian experiences. We know that the language of fundamental rights has its own rules (requiring, e.g., public authorities not to impair enjoyment of them when it comes to negative freedoms and, on the other hand, to take positive steps when social and economic rights are concerned). In addition, in the national experiences mentioned before, the right in question is not placed on a constitutional footing, although it is provided for under legislation, which may therefore be amended by subsequent ordinary legislation according to the ordinary principle of lex posterior derogat legi priori, and hence may even be watered down. More precisely, in Finland a decree20 has been adopted by the Ministry for Transport and Communications to regulate the minimum level of functional access to the Internet as a universal service. In particular, it is worth mentioning Article 60(3) of the Communications Market 19

20

Also, the Supreme Court of Costa Rica solemnly identified access to the Internet as a prerequisite for the exercise of other fundamental citizenship rights:  see Sala Constitucional, Expediente:  09-013141-0007-CO, judgment, 30 July 2010. According to the judges, ‘the verified delay in opening the telecommunications market has not only violated the right enshrined in Article 41 of the Constitution but also has affected the exercise and enjoyment of other fundamental rights such as freedom of choice of consumers as enshrined in Article 46, last paragraph in fine constitutional right of access to new information technologies, the right to equality and the eradication of the digital divide (info-exclusion )-Article 33 of the Constitution-the right to access the internet through the interface that the user or consumer chooses and free enterprise and trade’: English translation taken from www.technollama.co.uk/ costa-rican-court-declares-the-internet-as-a-fundamental-right. No. 732/2009.

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Act (notably an ordinary statute, not one of constitutional rank) which requires telecommunication companies to provide all citizens with an internet connection that runs at speeds of at least one megabit per second. In Estonia, the Telecommunications Act of 200021 lays down rules on the universal public service, stipulating that the Internet must be ‘universally available’ to all users.22 A similar approach has been followed by the Spanish law on the sustainable economy.23 On the level of EU law, on the other hand, it is worth mentioning Directive 2009/140/EC, amending Directive 2002/21/EC on electronic communications networks and associated facilities,24 into which it introduced Article 3 bis.25 It should be added that there are examples in international law which show that, beyond the human rights/fundamental rights rhetoric, there could be a pragmatic approach. As an example, in 2009 the Council of Europe dealt with the possibility of qualifying access to the Internet as a provision of member states’ public services.26 Against this background, another question seems to be relevant: in the attempt to go beyond the rhetoric of human/fundamental rights inflation, when does it really matter if the right of access to the Internet is protected at constitutional level and when does its constitutional status, conversely, not impact the degree of protection of the right? The recent Italian experience, in which two constitutional amendments were proposed in order to expressly enshrine in the constitution the right to access to the Internet as a fundamental right, seems to represent an interesting case study in this regard. In 2015 two constitutional bills – no. 1317 and no. 1561 – were introduced in the Italian parliament. The former bill called for the incorporation into the constitution of an Article 21-bis explicitly protecting the right to internet access.27 That provision was placed immediately after Article 21, which protects freedom of speech, in Title I of Part I relating to ‘civil rights’. According to the proposal,

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No. 56, 2000 According to Art. 5 ‘[t]he set of telecommunications services specified in subsection (1) of this section comprises: … Internet service which universally available [sic] to all subscribers regardless of their geographical location, at a uniform price’. No. 2 of 2011. Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services, OJ L 337, 18 December 2009, pp. 37–69. According to Art. 3-bis ‘[m]easures taken by Member States regarding end-users access to, or use of, services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law. Any of these measures regarding end-users’ access to, or use of, services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of the presumption of innocence and the right to privacy. A prior, fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to effective and timely judicial review shall be guaranteed.’ Under Spanish and Finnish law, internet connection is coupled with the concept of universal service. See S. Borg, ‘Right to Access the Internet: The Countries and the Laws that Proclaim It’, DiploFoundation Blog, 2 May 2011, available at www.diplomacy.edu/blog/right-access-internet-countries-and-laws-proclaim-it. This qualification of the right to access to the Internet was first proposed by S. Rodotà, ‘Una Costituzione per Internet’ (2010) 41 Politica del Diritto 337.

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‘[e]verybody has the right to access to the Internet, without any discrimination, through tools that are technologically adequate able to remove any obstacle of an economic or social nature.’ With regard to the second bill, it was proposed to add a new Article (34-bis) to the constitution in Title II relating to ‘social rights’ immediately after the provision (Art. 34) protecting the right to education. According to the proposed Article 34-bis, ‘[e]verybody has the right to access to the Internet, in a neutral way, and without discrimination and through technologically adequate means. The State promotes the conditions according to which the Internet is effectively protected as a “place” in which the human being develops his/her person and where the rights and duties of social, political and economic solidarity are exercised.’ The two proposed provisions, despite their apparent similarity, are structurally very different. Even if the intent in both cases is to let an autonomous right to access to the Internet emerge in the constitution, in the first case the proposed Article 21-bis is considering the right in question as belonging to the category of civil rights and, in particular, as being closely connected to the freedom of expression (in its negative dimension), whereas in the second case the proposed Article 34-bis is taking into consideration the social (positive) dimension of the right, and more precisely the dimension of a right to education.28 Does it make a difference? Sure it does. The first attempt (Art. 21-bis) does not achieve the goal of constitutional emancipation of the right to access to the Internet from free speech. Even if, from a formalistic point of view, it could be seen as a new right, the textual and logical proximity with freedom of expression (as is shown by the debate which has followed the proposal of the bill) does not allow the right in question to have an added constitutional value or to be enforced independently of freedom of speech. As already seen with regard to the case law of the French Constitutional Council, there is an undeniable process of constitutional engulfing or cannibalisation of the right of access to the Internet when it is also connected with ‘Her Constitutional Majesty’ the freedom of expression, the latter being inherently tied to the former insofar as access to the Internet constitutes one of the channels through which users are allowed to receive information. And also in this case, the same happens. The status as a prerequisite right, which is typical of access to the Internet, is already inherent within an extensive interpretation of Article 21 of the Italian Constitution: it is sufficient to consider how the Italian Constitutional Court has held in its case law since judgment no. 225/1974 (which was adopted at a time when television represented the highest level of technological development) that access to television constitutes a prerequisite for the exercise of other rights, whereas nobody has ever asserted a right of access to television under Article 21. In this way, the Court has kept itself immune from the appealing nature of the rhetorical dimension of human rights on the Internet. From this perspective, it would be beneficial to consider whether it would be appropriate to introduce an Article 34-bis, which seems to be supported for various reasons from the viewpoint of the systemic structure of the Constitution. Notwithstanding the widespread language of new digital rights, the above-mentioned option seems the best one for at least three reasons.29 First, 28

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For some comments on the Italian scenario, see, among others:  P. Passaglia, ‘Internet nella Costituzione italiana: considerazioni introduttive’ (2014) Consulta Online; G. De Minico, ‘Diritti Regole Internet’ (2011), www .Costituzionalismo.it; L. Nannipieri, ‘Costituzione e nuove tecnologie. Profili costituzionali dell’accesso ad internet’ (2013) www.gruppodipisa.it; P. Tanzarella, ‘Accesso a Internet: verso un nuovo diritto sociale?’, in E. Cavasino, G. Scala and G. Verde (eds.), I diritti sociali dal riconoscimento alla garanzia, il ruolo della giurisprudenza, (Naples: Editoriale Scientifica, 2013), p. 517. See also O. Pollicino, Esame in sede referente dei DDL 1317 e 1561 (diritto di accesso ad Internet), hearing at the First Permanent Committee (Constitutional Affairs), Senate of the Republic, 13 March 2015, available at www.medialaws .eu/esame-in-sede-referente-dei-ddl-1317-e-1561-diritto-di-accesso-ad-internet/.

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a sedes materiae other than that of negative freedoms would enhance a constitutional emancipation of the right to internet access from the scope of application of free speech. Second, the constitutional codification of a right to internet access as a social right would make it possible to obtain something that is not currently guaranteed under other legal systems: namely the possibility to protect citizens against potential backsliding by public authorities. While Finland, Estonia and Spain protect a right of access to broadband (albeit under ordinary legislation and not directly in constitutional law), in Italy, on the other hand, a similar guarantee and a similar foundation could be established under constitutional law, including through Article 34-bis. There is another facet which has undoubtedly interesting implications: it could be of benefit to try to put in place immediately the forms of protection laid down in the European bill of rights, i.e. the Charter of Fundamental Rights of the European Union.30 Articles 25, 26 and 36 of the Charter establish the concept of social inclusion, which manifests itself in the right of the elderly to participate in the social and cultural community, the right of disabled people to benefit from measures of social inclusion, and the objective of the social and territorial cohesion of the Union.

20.4 Final Remarks: In Search of a Few Possible Indicators to Be Followed In light of the above, it may be possible to develop a few provisional legal indicators. The right of access to the Internet enjoys a constitutional emancipation from the freedom of speech only under specific conditions, if the constitution itself protects the right in a sedes materiae not too close to the one in which free speech is protected.31 If, instead, the constitutional protection is given by a judicial creation of the right of access to the Internet, this right is just a constitutional appendix of free speech, and a pre-condition for exercising other constitutional freedoms, at least looking at the Italian experience. Does the classification as a free-standing or derived right matter at constitutional level? Yes, it does; but it depends on the constitutional sedes materiae and on the framing of the constitutional codification of the right of access to the Internet. We have seen, with regard to the Italian experience, that the attempt to add a new Article 21-bis immediately after the provision protecting freedom of speech would not have achieved the result of attaching autonomous relevance to the right of access to the Internet, being based on an ad hoc provision whose content was in any case inherently connected to the exercise of free speech. It is instead crucial to work for the emancipation of the right of internet access from the constitutional destiny of free speech, because only in this way would the right of access to the Internet be independent from the possible decrease of protection that freedom of expression can experience when the relevant playground shifts from the world of atoms to the world of bits. An example may help to clarify matters. With specific regard to the ECHR,32 if we analyse the most recent decisions taken by the Strasbourg Court, it appears that, contrary to the trend in the US Supreme Court,33 the advent of the Internet has further extended the ability to limit freedom

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Charter of Fundamental Rights of the European Union, Nizza, 7 December 2000, in force 1 December 2009, OJ 2012 No. C 326/2. See the example of the Constitution of Greece, on the one hand, and the proposed constitutional amendments in Italy, on the other. O. Pollicino and M. Bassini, ‘Freedom of Expression and Defamation in Internet’, in J. Trzaskowski and A. Savjn (eds.), Research Handbook on EU Internet Law (Cheltenham: Edward Edgar, 2014), p. 508. As is well known, the First Amendment of the US Constitution provides for extensive protection of the freedom of speech: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

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of expression, provided that the conditions set forth under Article 10(2) ECHR are complied with by the national legislation. The assumption that freedom of speech works as a watchdog for democracy appears to have been revisited or, at least, marginalised, as the ECtHR seems to be focusing more on cases in which the Internet is likely to raise new issues and risks to the protection of fundamental rights than to those in which the Internet appears as a new opportunity for the exercise of rights. Even though the Court repeatedly held that the safe harbour entrusted to Article 10(2) must be assessed strictly, it cannot be denied that the advent of the Internet has fostered the debate about free speech. More specifically, according to the ECtHR, the specific medium of the Internet has amplified the past threats to fundamental rights. This point came up for the first time in Editorial Board of Pravoye Delo and Shtekel v. Ukraine, concerning the particular segment of freedom of expression corresponding to freedom of the press: The risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press. Therefore, the policies governing reproduction of material from the printed media and the Internet may differ. The latter undeniably have to be adjusted according to technology’s specific features in order to secure the protection and promotion of the rights and freedoms concerned.34

The assumption behind the Court’s reasoning is that the Internet is likely to raise new problems for the protection of fundamental rights and that the measures applied to traditional media will not work effectively in the new digital environment. This means that a new balance must be struck between freedom of expression and other human rights. In a nutshell, since the Internet is raising unprecedented legal issues, restrictions on the freedom of expression should be more broadly accepted. This remark could per se be enough to describe how different the approach of the ECtHR is from that of the US Supreme Court, which expressed the completely opposite view in Reno v. ACLU:35 The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.

Also in KU v. Finland,36 the Court stressed the non-absolute nature of the protection of certain fundamental rights on the Internet. The case concerned the dissemination of personal data relating to a child by an anonymous individual who had posted an online advertisement in

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or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’ The US Supreme Court has always enforced in the broadest way possible the wide protection given by the Constitution to the First Amendment, without distinguishing, as does the European Court of Human Rights, between the world of atoms and the world of bits. As an example, it is enough to recall Supreme Court, Reno v. ACLU, 521 US 844 (1997), which is nowadays regarded as a landmark ruling for internet freedom of expression. A similar approach, even more connected with the right to access to the Internet, is emerging from the recent US Supreme Court judgment in Packingham v. North Carolina, 582 U.S. ___ (2017), in which the US judges held that a North Carolina statute that prohibited sex offenders from accessing social media websites violated the First Amendment to the United States Constitution. ECtHR, Editorial Board of Pravoye Delo and Shtekel v. Ukraine (Appl. no. 33014/05), judgment, 5 May 2011, para. 63. Reno v. ACLU, 521 US 844, 885. ECtHR, KU v. Finland (Appl. no. 2872/02), judgment, 2 December 2008.

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which he claimed to be looking for a sexual relationship. When the applicant filed a complaint with the local court, there were no legal grounds under domestic law to force an internet service provider to disclose personal data in cases involving criminal conduct such as that at issue. In addition, the domestic legislation failed to strike a balance between the right to data protection and other interests. Although the complaint was not based on Article 10, the ECtHR made significant remarks concerning the exercise of free speech on the Internet: Although freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected, such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others … it is nonetheless the task of the legislator to provide the framework for reconciling the various claims which compete for protection in this context.37

Accordingly, the view taken by the Strasbourg Court is that the advent of new technologies, and of the Internet in particular, has not enlarged the scope of freedom of expression. Instead, it has increased the cases in which such right conflicts with other interests protected under constitutions. This assertion can be confirmed, first if we consider how the ECtHR reacted to the use of the Internet with respect to the freedom of the press, which is regarded as an essential pillar of the freedom of speech and democracy. In the Stoll case, the Court’s reasoning was based on the assumption that new technologies have made the duties of journalists more demanding: [T]he safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide ‘reliable and precise’ information in accordance with the ethics of journalism … These considerations play a particularly important role nowadays, given the influence wielded by the media in contemporary society:  not only do they inform, they can also suggest by the way in which they present the information how it is to be assessed. In a world in which the individual is confronted with vast quantities of information circulated via traditional and electronic media and involving an ever-growing number of players, monitoring compliance with journalistic ethics takes on added importance.38

Furthermore, these observations are confirmed even if it is assumed that similar conduct also occurred in the non-digital realm. Recalling the case of Yildirim v. Turkey,39 such a broad limitation of the freedom of expression as that adopted by the Turkish authorities would not presumably have been necessary. If one single publication is found to be defamatory and there are legal grounds to prevent its circulation, the measures which must be adopted by the relevant authorities in the non-digital world must relate only to that publication and not to others. In other words, there will be no reason to block additional online content, which is equivalent to offline seizure, instead of blocking only the content regarded as an unlawful exercise of the freedom of expression. Naturally, the issue of proportionality (which is the key factor here) is related to the nature of the technology. Moreover, it is one of the leading factors, which means that it is critical for the protection of freedom of expression on the Internet.

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Ibid., para. 49. ECtHR, Stoll v. Switzerland (Appl. no. 69698/01), judgment, 10 December 2007, pp. 103–104. ECtHR, Ahmet Yildirim v. Turkey (Appl. no. 3111/10), judgement, 18 December 2008.

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The application of the principle was also crucial in the recent case of Delfi v. Estonia,40 in which the ECtHR was asked to consider whether the fining of an internet news site for defamatory comments posted by users, which the website failed to remove promptly, amounted to a restriction of the freedom of expression. The Strasbourg Court found that Article 10 ECHR does not afford protection to freedom of expression in absolute terms. Rather, Article 10 allows contracting states to interfere with the exercise of this right, provided that said restrictions meet the conditions under paragraph 2, i.e. that they are prescribed by law, have a legitimate aim and are necessary in a democratic society. It is important to highlight that, while the Court held that the legislation in question imposed a significant restriction, it nevertheless found that it did not violate Article 10. Since, in the Court’s view, the protection of individual reputations ranks among the objectives that may justify a limitation on freedom of expression, it held that there had been no infringement of Article 10 because the interference was proportionate. Against this background, a constitutional codification of the right to the Internet and its consequent constitutional emancipation from the right to free speech would oblige constitutional courts to finally let the autonomy of the former emerge from the more restrictive approach adopted recently with regard to the protection of freedom of speech on the Internet. The second reason is related to a particular constitutional choice which, as in the case of the proposed Article 34-bis of the Italian Constitution, would lead to a constitutional configuration of the right of access to the Internet as a social right. This choice seems to be the most appropriate option for several reasons, as I have pointed out above. First of all, a different sedes materiae (than that of freedom of expression) would enhance a constitutional emancipation of the right of access to the Internet from the scope of application of freedom of expression. Second, the constitutional codification of a right of access as a social right would make it possible to obtain something that is not currently specifically protected in other national experiences. As we have seen in a national comparative dimension, despite the fundamental rights-based rhetoric which is sometimes polluting the debate, the right of access to the Internet is ‘just’ an important but ordinary right, which does not enjoy constitutional protection against legislative attempts to reduce or even remove the essence of a new right. This means that the ‘social injection’ that is given to the right to internet access through the universal service doctrine is genetically exposed to being downgraded by different political and legislative choices made by governments and parliaments which will follow. Third, one might then connect the right of access to the Internet to the notion of social inclusion as found, for example, in the Charter of Fundamental Rights of the European Union. One final aspect of particular relevance concerns the type of justiciability that could be envisaged for the right of access as social right. At least two options are possible. The first is to assess the reasonableness of any action taken by the legislature in order to protect the social right in question, considering the balancing with other countervailing interests (for example, financial resources and budgetary sustainability) that is required. The case law of the Italian Constitutional Court on the right to education provides various guidelines that are of particular interest in this regard, starting from judgment no.  80/2010 on classroom assistants in which, 40

ECtHR, Delfi v.  Estonia (Appl. no.  64569/09), judgment, 16 June 2015. The Court based its assessment on four principal considerations. First, in light of the context of Art. 10 ECHR, Delfi could have anticipated the higher-thanaverage-risk of receiving negative comments, and that these comments could reach the level of insult or hate speech. Second, as Delfi was in a position to predict the nature of possible comments, it would have been able to take technical or manual measures against these, but it failed to do so. Third, it was Delfi’s choice to allow comments from non-registered users, and by doing so, it must be considered to have assumed a certain responsibility for them. Finally, the moderate sanction of €320 imposed by the civil courts was seen as a fully justified and proportionate sanction.

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when weighing up financial interests against the right to education, the Court proved to be anything but indifferent to the latter. In fact, it held that it should prevail. The second option is more radical. Is it possible to move beyond the ‘provision of material and financial possibilities’? In other words, is it possible to guarantee a social right on a constitutional level that could lead the Constitutional Court of the country in question to review the failure to enact legislation? Simply put, can legislative inertia constitute a reason for the Constitutional Court to review a particular situation? This approach appears to be objectively complicated, even though there are indications within comparative law that this should be the case. These indicators give the impression that the reasoning operates on two planes. The first focuses on infrastructure and technology, namely the need to guarantee broadband or ultra-fast broadband. From this viewpoint, the principles of constitutional law would be an extremely important element in reviewing laws that do not guarantee adequate implementation of the right in question. On the other plane, it is necessary to engage in cognitive and above all cultural promotion, and to combat computer and digital illiteracy, which impinges upon a fundamental aspect of the right of access, namely its status as an inherent prerequisite for the exercise of other rights. What is more fundamental than the cultural dimension in ensuring that the digital divide does not continue to grow? The link between the right to education and the right of internet access could not be closer in this age in which access to information is fundamental in order for everyone to be effectively vested with a substantive right of equality.

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21 The Case for the Right to Meaningful Access to the Internet as a Human Right in International Law Baş ak Çalı

21.1 Introduction: The Internet and Human Rights The Internet and human rights have become an inseparable pair in recent scholarly and legal policy literature. This literature has predominantly focused on the importance of the Internet for realising the right to freedom of expression, including the right to receive and impart information,1 and the risks that internet communication entails for the effective protection and enjoyment of other human rights, such as the right to privacy, children’s rights and non-discrimination, be they in the fields of hate speech, child pornography or trafficking.2 The state regulation of internet access, either through policies of restricted access or censorship,3 or, indeed, through non-regulation by leaving this to internet service providers or tech companies, has also receive sustained attention in legislative responses, judicial decisions across jurisdictions and supranationally.4 Much of this literature takes for granted the fact that there is pre-existing access to the Internet for individuals, focuses on how internet access affects existing human rights protections and discusses the extent of states’ negative and positive obligations to protect a whole range of rights that can be enhanced or undermined by internet access. In this chapter, my aim is to move away from the human rights questions raised by internet access to the question of whether there ought to be a stand-alone right to access to the Internet and what the normative content of the access to internet may cover. To be clear, under positive international human rights law there is no stand-alone right to internet access,5 even though a handful of ordinary domestic laws and constitutions have started to address this question6 and soft law developments also exist, in

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M. L. Best, ‘Can the Internet Be a Human Right’ (2004) 4 Human Rights & Human Welfare 23; K. Mathiesen, ‘The Human Right to Internet Access: A Philosophical Defense’ (2012) 18 International Review of Information Ethics 9; K. Mathiesen, ‘Human Rights for the Digital Age’ (2014) 29 Journal of Mass Media Ethics 2. Y. J. Lim and S. E. Sexton, ‘Internet as a Human Right: A Practical Legal Framework to Address the Unique Nature of the Medium and to Promote Development’ (2011) 7 Washington Journal of Law, Technology & Arts 295. See e.g. Constitutional Council of France (Conseil constitutionnel), Decision No. 2009-580 DC, 10 June 2009, available at www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/2009_580dc.pdf. See e.g. ECtHR (Grand Chamber), Delfi v. Estonia (Appl. no. 64596/09), judgment, 16 June 2015. R. F. Jørgensen, ‘Freedom of Expression in the Internet Era’, in U. Carlsson (ed.), Freedom of Expression Revisited: Citizenship and Journalism in the Digital Era (Gothenburg: Nordicom, 2013), p. 125. Laws have been passed in Finland, Estonia, Greece and Spain that create rights of internet access. See S. Borg, ‘Right to Access the Internet: The Countries and Laws that Proclaim it’, DiploFoundation Blog, 2 May 2011, available at www.diplomacy.edu/blog/right-access-internet-countries-and-laws-proclaim-it.

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particular at the level of the United Nations and the Council of Europe.7 While Pollicino’s contribution8 to this volume explores internet access as a fundamental right under constitutional law, focusing on recent proposed amendments to the Italian Constitution, my focus, instead, is on internet access as a universal human right under international law. Given the current state of affairs, I ask whether there should be a stand-alone human right to internet access in international law and what forms of justification are appropriate to derive a stand-alone right to internet access. These questions take the focus of this chapter into the territory of normative reasoning with regard to deriving new human rights in international law and substantive arguments for and against deriving a positive human right to internet access in international law. The chapter argues that a strong case for an instrumental justification of a new legal human right to meaningful internet access exists in the context of the opportunities and risks it continuously generates,9 and that the current international human rights architecture is well placed for deriving this right and specifying the normative content of this right. The chapter is composed of five sections. In Section 21.2 I outline different modes of deriving a new human right in international law, namely, expansion of the scope of an existing human right through an implied rights doctrine and deriving a stand-alone human right through hybrid modes of legal-normative justification. In Section 21.3 I review the current efforts to derive a right to internet access primarily from positive obligations associated with freedom of expression and the limits of the right to internet access implied as a positive obligation. In Section 21.4 I present the case for deriving a stand-alone positive human right to internet access, pursuing a pluralist reasoning structure that employs an intersectional form of reasoning pointing to the instrumental importance of a right to internet access for a wide range of international legal human rights. In Section 21.5 I consider the objections to the desirability and feasibility of deriving a stand-alone right to internet access in international human rights law. Section 21.6 concludes.

21.2 Deriving a New Human Right under International Law: Implied Rights and Stand- alone Rights Deriving a new human right under international human rights law follows two different paths of legal normative reasoning. The first path of rights derivation is through the doctrine of implied rights and corresponding duties. The second path is to derive a stand-alone human right by making a justificatory argument that no existing right alone can adequately protect the important interests in question and that the introduction of a new right is feasible from the perspective of duties imposed on states by this introduction.10 Both of these pathways of normative reasoning are sensitive to adequate practice-based concerns: that is, the legal case for deriving a new human right is stronger to the extent that it finds support in the practice of states. Implied rights doctrine is a common heuristic tool used to expand the existing scope of a human right and associated obligations attached to that right. It is invoked regularly in constitutional interpretation as well as in international human rights law interpretation.11 The core

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Human Rights Council (UNHRC), Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, 16 May 2011, UN Doc. A/HRC/17/27; Parliamentary Assembly of the Council of Europe, Resolution 1987 (2014) on The right to Internet access, 9 April 2014. O. Pollicino, in this volume. J. Zittrain, The Future of the Internet – And How to Stop It (New Haven: Yale University Press, 2008). J. Nickel, Making Sense of Human Rights, 2nd ed. (Malden: Blackwell, 2007). M. Burbergs, ‘How the Right to Respect for Private and Family Life, Home and Correspondence Became the Nursery in which New Rights Are Born: Article 8 ECHR’, in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR: The

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normative move in identifying implied rights is normative and textual fidelity to an already recognised positive human right. This is often accompanied by the corresponding argument that an already existing right can be reasonably construed to apply to developments and concerns that are not recognised in the text itself, or that the normative coherency of the right would be jeopardised if its scope is not expanded to include the new rights concern at stake. While the legitimacy of identifying implied rights based on logical premises is not controversial, there remains controversy in deriving rights in order to adapt the existing texts to changing circumstances and needs under the broader doctrine of human rights treaties as living instruments. Implied rights, therefore, can be viewed as illegitimate international law-making, depending on the existing consensus on reasonably expanding the scope of a right. Deriving a stand-alone right follows a different path of argumentation. Normatively, deriving a stand-alone right requires a special form of justification with the aim of showing that none of the existing human rights can adequately protect or respond to the new threats emerging to fundamental human interests, and that successful protection of an important interest in a comprehensive way can only be achieved by deriving a stand-alone right. Deriving a stand-alone human right also faces a distinct set of challenges in international law in comparison to deriving new rights in the context of constitutional law.12 This is because new, derived stand-alone human rights must demonstrate universal importance, relevance and feasibility. In response, those who are sceptical of deriving new stand-alone rights in international law may argue that the new right does not meet the threshold of importance, that it does not add any new value to already existing rights, that the new right creates undue burdens for those who will be under an obligation to provide for the new right, or that it is not possible to universalise the right due to economic, cultural or other forms of diversity in international society.

21.3 Internet Access as an Implied Right under Freedom of Expression: A Firm Negative Right and a Soft Positive Goal In international human rights law, internet access has often been derived as an implied right flowing from the more generic protections afforded to freedom of expression. The right to freedom of expression under international human rights law contains within it the right to information, which is often highlighted as the specific justification for deriving a right to internet access. For example, one of the earliest calls to recognise a right to internet access was made by Best in 2004, with reference to Article 19 of the Universal Declaration of Human Rights (UDHR),13 that would protect the right to freedom of opinion and expression and in particular the ‘symmetry in information rights’ implied in the wording of Article 19 – ‘to hold opinions without interference and to seek, receive and impart information and ideas through any media regardless of frontiers’.14 Best held that the Internet was becoming and predicted to be ‘the standard mode of distance communication for all media’, which meant that to be excluded from the Internet ‘is, effectively, to be excluded from information, full stop’.15

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Role of the European Court of Human Rights in Determining the Scope of Human Rights (Cambridge: Cambridge University Press, 2013). On deriving new rights as a matter of constitutional law, see N. Tebbe and R. L. Tsai, ‘Constitutional Borrowing’ (2010) 108 Michigan Law Review 459. On deriving them as a matter of international law, see P. Alston, ‘Conjuring up New Human Rights: A Proposal for Quality Control’ (1984) 78 American Journal of International Law 607. UNGA, Resolution 217A on Universal Declaration of Human Rights (UDHR), 10 December 1948, UN Doc. A/Res/ 227 III (A). Best, ‘Can the Internet Be a Human Right’, 23 (original emphasis). Ibid., 24.

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A 2011 Report of the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, also grounds its analysis of internet access in an implied rights framework employing Article 19 of the UDHR, together with Article 19 of the International Covenant on Civil and Political Rights (ICCPR).16 This report, recognised as the first time any suggestion of a right to internet access was issued by a ‘high level international body or high profile official’,17 noted that the reference to ‘any media’ in both Articles 19 demonstrates that these articles were drafted to accommodate future and potential technological developments including the Internet. Making a case for the right to access to the Internet as flowing from freedom of expression and the right to information, however, predominantly focuses on protecting access once it is available to individuals.18 Given that freedom of expression is a qualified right, that is a right that can be legitimately infringed to protect other fundamental rights or public interests, states assume the negative obligations not to interfere disproportionately with the pre-existing right to access the Internet. This allows issues such as internet blackouts, arbitrary filtering, blocking of content, criminalisation of expression online, forced disconnection and the duty to regulate access-restrictive policies of private intermediaries (e.g. internet service providers and tech companies) to come under the purview of traditional freedom of expression analysis in international human rights law.19 Whether a positive right to internet access when it is not available or restrictively available can be derived from freedom of expression, however, has also received attention, including from the UN Special Rapporteur. Deriving a right to internet access from freedom of expression requires shifting focus from protecting individual liberties to ensuring equality in exercising the freedom of expression. This in turn requires conceptualising freedom of expression as requiring a positive obligation to protect the right to communicate in terms of receiving, seeking and imparting information in equality with others.20 The Special Rapporteur has underlined this positive obligation aspect of freedom of expression by stating that ‘without Internet access, which facilitates economic development and the enjoyment of a range of human rights, marginalized groups and developing States remain trapped in a disadvantaged situation, thereby perpetuating inequality both within and between States’.21 However, he has not called for a stand-alone right to access to the Internet to be recognised or established in human rights law. Instead he says: the Special Rapporteur reminds all States of their positive obligation to promote or to facilitate the enjoyment of the right to freedom of expression and the means necessary to exercise this right, including the Internet. Hence, States should adopt effective and concrete policies and strategies – developed in consultation with individuals from all segments of society, including the private sector as well as relevant Government ministries – to make the Internet widely available, accessible and affordable to all.22 16

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Art. 19 of the International Covenant on Civil and Political Rights (ICCPR), New York, 16 December 1966, in force 23 March 1976, 999 UNTS 171, like Art. 19 of the UDHR, protects freedom of expression. J. W. Penney, ‘Internet Access Rights: A Brief History and Intellectual Origins’ (2011) 38 William Mitchell Law Review 10 at 14. Ibid., 18. See generally HRC, CCPR General Comment No. 34: Art. 19: Freedoms of opinion and expression, 12 September 2011, UN Doc. CCPR/C/GC/34. On this positive conception of freedom of expression and the implied right to communicate, see Penney, ‘Internet Access Rights’, 19. HRC, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, para 62. Ibid., para. 66.

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In this formulation, the right to internet access is identified as an important goal for the realisation of freedom of expression. States are recommended to adopt measures towards this goal, but such measures are not subject to time pressures, nor do they come with minimum core obligations that are traditionally associated with rights with resource implications. The positive obligation to provide access to the Internet does exist, but not in the form of a hard right to access to the Internet, rather as good policy to realise freedom of expression. This view – that there is no implied hard right to internet access under international law – has also been confirmed by other commentators.23

21.4 Deriving a Stand- alone Right to Internet Access as a Human Right under International Law A stand-alone positive right to internet access requires moving away from deprivation of access to the Internet of those who already have it to focus on imposing firm positive obligations on states to ensure access. The right to access to the Internet would then require specification of state duties on two dimensions. The first set of duties are directed towards ensuring that those who are not able to afford their own internet access have such access through means of self-help or social assistance. This means that to provide internet access becomes a duty on the part of state authorities and failure to do so would result in a violation of the right to internet access. The second set of duties concern making access to the Internet meaningful access. This requires ensuring that internet access is not limited to only some parts of the Internet and that it is not offered in ways that manipulates what individuals can receive from it. This duty requires regulation of state and private providers. To justify this stand-alone access, we need to review the case for lack of internet access as an important contemporary threat for human beings and the importance of the right to internet access and its universal significance, and to ensure that the duty it imposes on states is feasible and realisable. The right to internet access responds to a new threat in human experience. The Internet has become the central medium through which individuals access information; participation is crucial for their education and employment opportunities, and enables them to participate in political, cultural and social life. With the rise of E-government, internet access is also crucial for accessing public services, such as health care. The new threat that comes with lack of access to the Internet is a concrete threat to equality of individuals. Indeed, the inequality that is created by lack of internet access – ‘the digital divide’ – shows that men have better access to the Internet than women24 and individuals living in least developed states have the worst internet access.25 The lack of internet access therefore perpetuates and deepens already existing inequalities within and across societies, and runs contrary to the aim of international human rights law of ensuring non-discrimination and equality for everyone. What is more, there is no evidence that the Internet and digitalisation are temporary features of human life. The right to internet access is important not only because it facilities equality in exercising freedom of expression, but also because it has become a gateway for the full realisation of a wider range of civil, economic, political, social and cultural rights. Lack of internet access leads to factual and hybrid forms of rights deprivation for individuals, in particular for women and children,

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B. Skepys, ‘Is There a Human Right to the Internet?’ (2012) 5 Journal of Politics and Law 15. International Telecommunications Union, ICT Facts and Figures 2017 (Geneva: ITU, 2017), p. 4, available at www .itu.int/en/ITU-D/Statistics/Documents/facts/ICTFactsFigures2017.pdf. Ibid., p. 2.

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and this deprivation cannot be remedied by pointing only to the right to education or the right to culture. These hybrid and intersectional forms of deprivation underpin the case for the right to internet access as a stand-alone right in international law. The universal scope of this right is not controversial. The Internet is not a particular feature that is unique to the developed world or to any one culture. It has been adopted by all countries in the world and the opportunities that it provides for all human beings are not a matter of contestation. Similar to all rights with an access to a public good component, the right to internet access has to be justified from the perspective of whether it imposes burdensome and unfeasible duties. A key central question about right to internet access is whether it would call for a disproportionate redirection of already scarce resources from more fundamental human interests protected by already existing legal human rights, such as the right to conventional education, health care or social rights. The right to internet access, however, does not appear to require resource shifts from any of these core areas because accessing other fundamental rights are organised more and more through the right to internet access itself. This instrumental value of the right to internet access shows that it has a positive relationship with other important rights, not a negative one.

21.5 Objections The first objection to the case for a stand-alone right to internet access as an international human right is that it is not important enough in relation to other important and fundamental human interests. Vinten Cerf, seen as one of the ‘fathers of the Internet’, published an op-ed in the New York Times in which he argued that internet access is not a right. He maintained that ‘technology is an enabler of rights, not a right itself’.26 His notion of human rights is that they ‘must be among the things we as humans need in order to lead healthy, meaningful lives, like freedom from torture or freedom of conscience’.27 If we elevate particular technologies to this level, then ‘we end up valuing the wrong things’, and he gives the following example: For example, at one time if you didn’t have a horse it was hard to make a living. But the important right in that case was the right to make a living, not the right to a horse. Today if I were granted a right to have a horse, I’m not sure where I would put it.28

A central rebuttal to this view would need to focus on the distinction between a basic moral human right and specified legal human rights. Failing to appreciate this distinction may seem to imply that ‘no right that is not primary should be designated a human right’.29 As a matter of positive international human rights law, many of the rights already existing in global human rights treaties would not meet this test. The right to access to an effective judicial remedy that is recognised in all human rights treaties is a case in point. This is not a primary right, but is an essential part in realising people’s right to equal concern and respect by state authorities. Specifically, the right to an effective judicial remedy requires the establishment of an effective judicial system and a legal framework to protect this right. Meaningful access to the Internet thus belongs to the genre of specified legal human rights without which a wide range of general basic rights and equal protection of these rights for all human beings cannot be guaranteed in the twenty-first century and beyond. The digitalisation of society, the economy, politics and culture means that internet access in our contemporary 26 27 28 29

V. G. Cerf, ‘Internet Access Is Not a Human Right’, New York Times, 4 January 2012. Ibid. Ibid. Mathieson, ‘Human Rights for the Digital Age’, 6.

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setting does not merely address a superficial interest. The Internet has become essential to people’s ability to function in society and flourish. Without adequate access to the Internet, access to education and knowledge – essential for employment prospects and for full participation in economic and political life – are hampered for those who find themselves on the wrong side of the digital divide. The second objection to the right to internet access is that it would be too burdensome to provide it. This argument is not strong given the existence of many other legal human rights that are also burdensome, such as the right to education and the right to health care. It is also not clear whether the right to internet access would indeed be burdensome. No access right is conceptualised in an absolute way and general constraints apply to access rights: duties of progressive realisation, minimum core obligations and priority for vulnerable members of society would also apply to a right to internet access.30 The realisation of economic and social rights do not impose immediate duties on states, but duties that require steps to be taken with regard to the maximum available resources. The Committee on Economic, Social and Cultural Rights has elaborated on this to indicate that discriminatory provision of access to a resource is a violation of economic and social rights, and that each resource intensive right comes with minimum core obligations. In the case of a right to internet access, offering safe and free spaces to access the Internet for education and participation in political, economic and cultural life, and providing access to those in prisons or other places of detention, for example, can be construed as minimum core obligations that ought to attract immediate priority in planning. The recognition of the right to internet access in international law further would not insist that this access is secured in identical ways in each and every country. This could range from making internet access free to all, making the Internet freely accessible in public spaces and diverting resources to ensure that those who have found themselves on the wrong side of the digital divide, such as women and those who live in rural areas, receive priority in the implementation of the right to access to the Internet. A  viable system of access to the Internet as a right need not preclude some individuals paying for internet access themselves. The final objection to deriving a stand-alone right to internet access in international law is the lack of support for this in the practice of states. As Pollicino shows, states’ regulatory efforts in the field of internet access have primarily focused on the threats posed by the Internet and there are only piecemeal constitutional or legal developments in recognising a right to internet access.31 A rebuttal for this is the central role that international law has played in the enunciation of new human rights in international law since the Universal Declaration of Human Rights. A social process of articulation of new rights has often been seen at the level of the United Nations or regional human rights systems through iterative dynamics of soft and hard law articulation, interpretation and contestation, as has been the case for the right to water.

21.6 Conclusion On balance of argument, the instrumental case for deriving a stand-alone right to internet access as a human right in international law fares stronger than those arguments that would advise against it. However, caution must be advised for those who see the right to internet access 30

31

Committee on Economic, Cultural and Social Rights (CESCR), General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2(1) ICESCR), 14 December 1990, UN Doc. E/1991/23, paras. 9–12. Pollicino, in this volume.

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as primarily derived from freedom of expression at the expense of appreciating the inequalities that are perpetrated by unequal internet access for a wider range of civil, political, economic, social and cultural rights. In this sense, my argument mirrors Pollicino’s view that a right to internet access has much greater value and potential when it achieves ‘emancipation’ from the right to freedom of expression.32 What is also pertinent is that the right to access to the Internet is not merely a question of provision of a good in abundance, that is making internet access available to all. All access questions in international human rights law focus not only on questions of mere access, but also meaningful access. Meaningful access to the Internet imposes duties on governments to ensure that the risks of internet access are addressed as the generative nature of the Internet evolves, and that those who have access know how to use it meaningfully in pursuit of their fundamental interests. Online literacy, understood as the ability to use the Internet meaningfully, and an awareness of the threats that are present when accessing the Internet, including protection from incorrect information, limited access to the Internet through self-interested private service providers, manipulation and abuse of data of individuals who have access to the Internet, are all essential components in elaborating the normative content of the right to internet access. No existing human right alone can address the contemporary threats posed by the lack of meaningful access to the Internet. It is for this reason that it is timely for not only a bottomup approach through domestic legislation and constitutional protections, but also a topdown approach for deriving a stand-alone right to internet access from existing human rights obligations of states in international law. It is also necessary for the effective realisation of human rights in the twenty-first century.

32

Ibid., p. 271.

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22 The Right to Be Forgotten Mart Susi

22.1 Introductory Notes The expression ‘the right to be forgotten’ entered the global human rights landscape during the twenty-first century. It emerged simultaneously and independently in various parts of the globe – Europe, South America and Asia. It is related to the idea of forgiveness, entitling an individual to ‘control’ her past on the Internet in relation to facts and situations which are true and accurate, but which this individual would prefer to no longer be electronically accessible to the others. This entitlement is to be contrasted with the right to the erasure of data, which refers to inaccurate or untruthful information. The right to be forgotten is an entitlement for an individual to request, from the data controller, the blocking of access to or deletion of data lawfully published in the original sources. This entitlement strengthens with the passage of time, whereas the right to data erasure emerges immediately after debatable data is made electronically available. The right to be forgotten is sporadically recognised in court judgments – judgments of the highest national courts, the Court of Justice of the European Union (CJEU) – and national and regional legislation (the EU Data Protection Regulation1). The focus is on shielding personal and sensitive data against unwanted use and empowering the rights of children against the overwhelming capabilities of digital reality. The further recognition by way of soft law cannot be excluded in the future, given the shift of global human rights approaches towards prioritising privacy over the unrestricted right to know. The rights rhetoric inherent in the expression ‘right to be forgotten’ implies applicability in constitutional-level human rights conflicts, i.e. where two or more interests or rights collide. These are, not exhaustively, the conflicts between the freedom of expression versus the right to privacy, the right to oblivion versus the right of the public to know, and lustration and reconciliation versus interest in the truth. However, the problematic aspect of the right to be forgotten lies not so much in its doctrinal basis, but in its practical realisation. Relevant global stakeholders (multinational internet service providers) have a clear desire to assume the standard-setting role vis-à-vis the inability of global institutions to agree upon concrete standards and methods for horizontal human rights protection mechanisms. The divide among the scholarly community and policy organs – some emphasising the need to protect freedom of expression on the Internet more, while others noting the manifest bias of internet service providers to promote freedom

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Discussed in Section 22.3.3.1.

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of expression over privacy – is evident in the discourse around the right to be forgotten as well. Within this debate, the most fundamental concerns pertain to the possibility of private censorship exercised by internet companies when reviewing requests for data blocking or deletion, and the unrealistic burden to give reasons for respective decisions. This chapter will argue that the right to be forgotten is a human rights norm (more precisely, a generic decision principle) aiming to bring order to the task of balancing privacy and freedom of expression on the Internet. Its efficiency is related to the overarching, perhaps unachievable task of regulating the protection of human rights on the Internet. ‘Human rights language’ used when exploring ‘the right to be forgotten’, and the formulation of the term itself, raise the claim that such right exists as a separate human right. The adjective ‘new’ in front of a human right can refer to either a substantive or formal aspect of the concrete human right claiming newness, or to both. The substantive aspect primarily refers to novelty, e.g. how this new human right is positioned inside or against already established human rights. In the case of the right to be forgotten, this substantive aspect is how it is positioned among rights related to the issues of forgetting and forgiving, and why it can claim status as a separate human right instead of simply broadening the scope of the right to privacy. The formal aspect refers to recognition. Recognition can be understood narrowly (the claim becomes a human right when the UN General Assembly tells us so, as stated in 1968 by Richard Bilder2), or broadly (as the political agenda of an interest group to position their cause under the banner of a human right), or between these extremes. Rhetoric bridges the substantive and formal aspects and signifies the intensity of the social and legal context of the emergence of the right claiming the status of a new human right. The right to be forgotten has developed in almost ideal conditions for a human rights scholarship that is interested in the phenomenon of a ‘new’ human right – quickly, associated with strong rhetorical components and gaining recognition sporadically around the world.

22.2 Novelty 22.2.1 Definition and Origin The right to be forgotten is defined as the entitlement to request from an internet search engine operator deletion or blocking of links to information which the person prefers no longer to be electronically accessible to others. Such requests are related to information which is in the public domain lawfully. The right is not absolute in character, which means that the person has the right to request blocking and deletion, but the internet search engine operator does not have an automatic obligation to grant this request. There are three main aspects where no consensus exists – these are not related to the definition of the right, but its practical dimension. The first is related to the burden of proof. Does the individual requesting blocking or deletion have to provide reasons for such a request, or conversely, does the internet search engine operator have an obligation to explain why a request is not accepted? The second concerns the constitutional legitimacy of internet search engine operators as private corporations in assuming the responsibility for protecting a human right,3 which also means an obligation to realise someone’s right 2

3

See P. Alston, ‘Conjuring up New Human Rights: A Proposal for Quality Control’ (1984) 78 American Journal of International Law 607 at 614. For a discussion on the subject, see O. Pollicino and G. Romeo, ‘Concluding Remarks: Internet Law, Protection of Fundamental Rights and the Role of Constitutional Adjudication’, in O. Pollicino and G. Romeo (eds.), The Internet and Constitutional Law: The Protection of Fundamental Rights and Constitutional Adjudication in Europe (London: Routledge, 2016), p. 234.

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to be forgotten. The third is about the scope of this alleged new right: a narrow interpretation means that the person can evoke this right only in regard to information she has herself made available on the Internet; a wide interpretation refers to any information which may be related to the person originating from other sources.4 Doctrinally, the right to be forgotten is based on the idea of personal autonomy and ability to control one’s personal data for the purposes of self-determination  – there appears to be a consensus about the theoretical foundations of the right to be forgotten across the globe. There also appears to be wide agreement between scholars and policy-makers that the right to be forgotten emerged because of developments in data processing which put private data at risk of being exposed to the global audience without consent.5 The concept of privacy is essential for constructing the right to be forgotten – some write that the development of the privacy doctrine has led to the right to be forgotten as a new and separate human right;6 others confine themselves with the statement that the right to be forgotten is not a new right and is covered by the scope of the right to privacy.7 22.2.2 Rights and Principles Linked to Forgetting 22.2.2.1 The Idea of Forgiveness The idea of forgiveness is sometimes seen as being embedded in the right to be forgotten. This approach is not substantiated, as it cannot be shown that not remembering something is the pre-condition for forgiveness, or the other way around. The right to be forgotten is an ontic concept:  that is, it is an entitlement to request that something changes in the online world, e.g. information is no longer available. Forgiveness is an epistemic concept: that is, it refers to one’s mental judgment of something which has happened in the past and is not dependent on whether it is possible any longer to get information about what happened. The multidimensional relationship between forgiveness and not remembering has given rise to different rights. Not forgetting and not forgiving is known as lustration. Not forgetting but forgiving is known as reconciliation. The right to erasure and the right to oblivion should in principle lead to forgetting and therefore exclude the issue of forgiveness, because if one does not know something, they cannot decide whether to forgive or not. The right to be forgotten exists only in the digital world and persons evoking this right may have different opinions about the question of forgiveness.

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The chief privacy counsel at Google, Peter Fleischer, identified three main problem areas where different approaches may be applied: the person posts something about herself; someone copies the person’s information and distributes it further; and finally, someone posts something concerning a person without her involvement – see J. Rosen, ‘The Right to Be Forgotten’ (2012) 64 Stanford Law Review Online 88 at 88–92. B. van der Sloot, ‘Do Privacy and Data Protection Rules Apply to Legal Persons and Should They? A Proposal for a Two-Tiered System’ (2015) 32 Computer Law and Security Review 26. C. Kuner, ‘The European Commission’s Proposed Data Protection Regulation:  A Copernican Revolution in European Data Protection Law’ (2012) Bloomberg Privacy and Security Law Report 1 at 2. U. Pagallo and M. Durante, ‘Legal Memories and the Right to be Forgotten’, in L. Floridi (ed.), Protection of Information and the Right to Privacy – A New Equilibrium? (Cham: Springer International Publishing AG, 2014); A. Sebastio, ‘The Online Right to Be Forgotten in the European Justice Evolution’ (2015) 4 International Journal of Management, Knowledge and Learning 59. Lynskey argues, in contrast, that privacy law does not recognise the right to be forgotten, without providing a further insight into this thought – see O. Lynskey, ‘Deconstructing Data Protection: The ‘Added-Value’ of a Right to Data Protection in the EU Legal Order’ (2014) 63 International and Comparative Law Quarterly 569 at 587.

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22.2.2.2 Erasure In contrast to the right to be forgotten, the right to erasure applies to information which is not accurate or truthful. This right emerges immediately after the information is made publicly accessible and the affected party has the right to demand its erasure or rectification. If the component of untruthfulness or inaccuracy is established, the publisher or search engine operator has the clear obligation to erase the data or access to it, provided it is not the author of that information. 22.2.2.3 Oblivion The right to oblivion originates from the French civil law (le droit á l’oubli), allowing individuals who have been convicted of a criminal offence to object to the publication of the fact of conviction once the sentence is served and the statutory limitation period has passed. Several authors write that the right to oblivion is the same as the right to be forgotten, or that the right to be forgotten is an extension of the right to oblivion in the non-judicial past in the technological sphere.8 This interpretation is mistaken because of the absolute nature of the right to oblivion. Once a legally determined period has expired, information about someone’s judicial past disappears automatically from public records, or the authorities have the obligation to delete this information upon request. 22.2.2.4 Lustration and Reconciliation Lustration is a principle prohibiting officials of a former political regime from assuming any new positions of influence in a new regime.9 Recently, this principle was put into practice in the former socialist bloc countries, where various legal regimes were adopted in relation to former officials. These regimes either prohibited former officials from entering public service entirely and simultaneously made information about their involvement with the oppressive apparatus of the former regime public, or released this information for publication only when collaborators voluntarily chose not to surrender to the new security services.10 Reconciliation11 is a process which was introduced in South Africa following the apartheid regime with the goal of establishing the truth regarding human rights violations committed previously, and which gives the possibility of obtaining amnesty for and healing the sense of social injustice resulting from the violations. 22.2.3 Interest in the Historical Truth Interest in the truth may have been a trigger which led to the modern, global human rights architecture. Steven L. B. Jensen shows how the concept of ‘truth’ was important in the conceptualisation of human rights in 1960s world politics.12 The argument, which is related to factfinding, states that if certain information is deleted or blocked from the Internet, then this will seriously hamper the possibility of bringing to light undisputed facts from the past. Fact-finding 8

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C. de Terwangne, ‘Internet Privacy and the Right to Be Forgotten/Right to Oblivion’ (2012) Revista de los Estudios de Derecho y Ciencia Politica de la UOC 109 at 13; Sebastio, ‘The Online Right to Be Forgotten’, 59. E. Brahm, ‘Lustration’, in G. Burgess and H. Burgess (eds.), Beyond Intractability (Boulder:  University of Colorado, 2004). A comprehensive theoretical overview with references to the literature can be found in the concurring opinion of Judge Pinto de Albuquerque in the ECtHR judgment Sõro v. Estonia (Appl. no. 22588/08), judgment, 3 September 2017. For detailed analysis of reconciliation, see R. Shaw and L. Waldorf (eds.), Localizing Transitional Justice. Interventions and Priorities after Mass Violence (Stanford: Stanford University Press, 2010). S. L. B. Jensen, The Making of International Human Rights: The 1960s, Decolonization, and the Reconstruction of Global Values (Cambridge: Cambridge University Press, 2017), pp. 174, 196–197 and 201–204.

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is a manifold process which does not only depend on access to information, but also on the way that information is presented by the original source and who the fact-finders are. Fact-finding is a process of reliability and accountability, whereas internet-truth in relation to fact-finding might not stand up strongly against other debatable, yet modern forms of establishing facts – such as the diplomatic truth13 or the truth established by the human rights non-governmental sector.14 The reliability of facts established by algorithms as autonomous agents is an area where more research is needed.15 Yet the interest in ‘historical truth’ may constitute a condition sine qua non which excludes the realisation of the right to be forgotten; in other words, the interest in historical truth will trump the right to be forgotten. The remaining question, which is not the focus of this chapter, is about the universality of the notion of interest in historical truth. To rephrase this: should there no longer be historical interest in some facts from the past due to changing social factors? Does it mean that the claim for the right to be forgotten can again be raised in respect of such information? Or if something is characterised as interest in historical truth for one region, does it imply that other regions are bound by this characterisation equally? For the purposes of this chapter, the mere existence of the concept of historical truth shows that there are limits for the realisation of the right to be forgotten; that is, we are dealing with a relative and not an absolute right. 22.2.4 Concluding Note on the Aspect of Novelty The aspect of novelty in the process of human rights development refers to the substance of a new human rights claim. Is there something which distinguishes such a ‘new’ human right from other established human rights to the degree that using the adjective ‘new’ is justified? There are as yet no concrete and consensual criteria which would define when a ‘new’ human right is ‘born’. Within the process of conceptualisation, a ‘new’ right claiming the status of a separate human right can be justified as such either formally (recognition) and/or via discursive practice, or in the alternative such status can be rejected. The latter means that instead of justifying the claim of a separate new human right, such a human right will be viewed as a new aspect of an already established human right. Thus the adjective ‘new’ does not necessarily mean a separate human right. The debate whether the right to be forgotten is a ‘new’ self-standing human right or a specific digital feature of the right to privacy has not led to a definitive answer. The right to be forgotten clearly can be placed under the umbrella of privacy, which is a long-established human rights norm.16 Yet it also has to be acknowledged that the difficulties of protecting privacy online are novel, because they could not have emerged in the pre-Internet era. Jane Yakowitz Bambauer writes about the alleged harm to privacy which is a direct consequence of an increase in knowledge.17 The idea of sameness of human rights online and offline speaks for the proposition to 13

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For example, country reports issued by foreign ministries or embassies which serve as the basis of granting asylum or not. The ‘truth’ established by several non-governmental organisations became decisive in granting victory to Georgia in ECtHR, Georgia v. Russia (Appl. no. 13255/07), judgment, 3 July 2014. E. Esposito, ‘Algorithmic Memory and the rIght to Be Forgotten on the Web’ (2017) Big Data and Society 1. See, for example, Whitman’s analysis of the notion of privacy in the USA and in Europe. He writes: ‘What is at stake are two different core sets of values: On the one hand, a European interest in personal dignity, threatened primarily by the mass media; on the other hand, an American interest in liberty, threatened primarily by the government.’ J. Q. Whitman, ‘The Two Western Cultures of Privacy: Dignity Versus Liberty’ (2004) 113 The Yale Law Journal 1153 at 1219. Both sets of values are capable of incorporating the right to be forgotten. J. Yakowitz Bambauer, ‘The New Intrusion’ (2012–2013) 88 Notre Dame Law Review 205.

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consider the right to be forgotten a separate human right, since there is no right to be forgotten offline. The right to be forgotten would also pass Philip Alston’s quality control (appellation contrôlée) test,18 because the right to be forgotten reflects a fundamentally important social value (ability to control one’s online image), it is relevant throughout the world in different value systems (note the different concepts of privacy in the USA and Europe), it is an interpretation of the UN Charter obligation to protect privacy, it introduces a new aspect into the existing body of international human rights law regarding the right to privacy, there already is a high degree of international consensus about this claim, states already have a practice of enforcing the right to be forgotten, and it is sufficiently precise to give rise to identifiable rights and corresponding obligations (in this case those of private entities). To generalise, the stage of contestation whether the right to be forgotten is a separate human right is still ongoing. This theoretical and perhaps somewhat abstract question does not prevent this right from being realised. If the aspect of novelty does not provide an answer to the question whether the right to be forgotten can be justified as a ‘new’ self-standing human right, perhaps this answer can be found cumulatively by exploring the aspects of recognition and rhetoric.

22.3 Recognition 22.3.1 A Short Sketch of a Timeline The timeline of the emergence of the idea of the right to be forgotten appears to be the following. The ‘authorship’ of the term of the right to be forgotten may have been forgotten. In scholarly circles it is assumed that Viktor Mayer-Schönberger introduced the idea in his book published in 2009: Delete: The Virtue of Forgetting in the Digital Age.19 However, Nelson Remolina Angarita reports that the expression of the right to be forgotten was first used on the legal scene by the Colombian Constitutional Court in 1992.20 On 30 November 2010 Viviane Reding, the Vice-President of the European Commission, introduced the right to be forgotten as one of the conceptual pillars of EU data protection reform, by saying: I want to introduce the ‘right to be forgotten’. Social network sites are a great way to stay in touch with friends and share information. But if people no longer want to use a service, they should have no problem wiping out their profiles. The right to be forgotten is particularly relevant to personal data that is no longer needed for the purposes for which it was collected. This right should also apply when a storage period, which the user agreed to, has expired.21

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In Alston, ‘Conjuring up New Human Rights’, 615, Alston presents the criteria for satisfying the conditions of a new human right. V. Mayer-Schönberg, Delete:  The Virtue of Forgetting in the Digital Age (Princeton:  Princeton University Press, 2009). It is also suggested that he introduced the idea of this new right at the 2008 re:publica symposium in Berlin. N. Remolina Angarita, ‘Right to Be Forgotten in Cyberspace? International Principles and Considerations about Latin American Regulations’, in A. Del Campo (ed.), Towards an Internet Free of Censorship II, Perspectives in Latin America (Palermo: Facultad de Derecho, Universidad de Palermo, 2017), p. 175, with reference to Colombian Constitutional Court ruling T-414, 16 June 1992. V. Reding, ‘Privacy matters  – Why the EU needs new personal data protection rules’, speech delivered at the European Data Protection and Privacy Conference, available at http://europa.eu/rapid/press-release_SPEECH-10700_en.htm.

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On 13 May 2014 the Grand Chamber of the Court of Justice of the European Union published a judgment in Case C-131/12,22 which is now widely known as the Google judgment and where, according to the opinion of the international legal community, the CJEU recognised the right to be forgotten. Moreover, the EU General Data Protection Regulation, which was initiated in 2012 and became effective from May 2018, includes the right to be forgotten. The speech by Reding, the CJEU judgment and the Regulation are widely recognised as having brought the right to be forgotten into the centre of human rights landscape in Europe and internationally. 22.3.2 Recognition by Courts 22.3.2.1 The Court of Justice of the European Union Although the global legal community credits the CJEU with introducing the right to be forgotten into the European human rights landscape, the Court did not do this. To say that the CJEU introduced the right to be forgotten would mean that the Court applied this term on its own motion towards a legal issue it was facing, which was not the case. The term ‘the right to be forgotten’ was used by the Spanish Court when formulating one of the questions to the CJEU (does the operator of a search engine have the obligation to remove results displayed following a search that the data subject wishes to be forgotten after a certain time23), and by Mario Costeja González and the Spanish and Italian governments, according to whom the fundamental rights to the protection of personal data and to privacy – which encompass the right to be forgotten – override the legitimate interests of the operator of the search engine and the general interest of freedom of information.24 The Court expressly limited itself by not using the term ‘the right to be forgotten’ in the decision’s reasoning. Instead, in paragraph 96 of the judgment, it writes about the need to examine whether the data subject has ‘a right’ to demand that search results are no longer available, and then that it is not necessary that ‘such a right’ is linked to the prejudice caused by the elimination of the search results. Relying on Articles 7 and 8 of the EU Charter of Fundamental Rights,25 the CJEU defines this ‘right’ as overriding the economic interest of the operator and the interest of the general public to know the information, unless the data subject has played a certain role in public life.26 In addition to the role of the data subject in public life, the Court introduces another criterion – time – by writing: ‘even initially lawful processing of accurate data may, in the course of time, become incompatible with the directive where those data are no longer necessary in the light of the purposes for which they were collected or processed. That is so in particular where they appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed.’27 Therefore, the CJEU wrote about ‘a right’ in relation to the request for data-blocking, but not about the right to be forgotten.

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Case C-131/12, Google Spain SL, Google Inc. v. Agencia Espańola de Protección de Datos (AEPD), Mario Costeja González, judgment, 13 May 2014, EU:C:2014:317. Ibid., para. 89. Ibid., para. 91. Charter of Fundamental Rights of the European Union, Nizza, 7 December 2000, in force 1 December 2009, OJ 2012 No. C 326/2. Case C-131/12, Google Spain SL, Google Inc. v. Agencia Espańola de Protección de Datos (AEPD), Mario Costeja González, para. 99. Ibid., para. 93.

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The Court has not issued any other judgment since Google elaborating on the right to be forgotten. At the time of writing this chapter, the French Supreme Court has asked the CJEU for a preliminary ruling to clarify the scope of the request for delisting.28 22.3.2.2 The European Court of Human Rights The European Court of Human Rights has not decided any case where it evoked the right to be forgotten. Within the ambit of the right to privacy under Article 8 of the European Convention of Human Rights,29 the Court protects the right to reputation,30 but online reputation has escaped the scrutiny of the Court. The Court has also cautioned against rewriting history,31 but in relation to elimination of all information from the public domain. The right to be forgotten does not amount to such elimination, as shown previously. 22.3.2.3 National Courts For the purpose of this chapter, it is sufficient to state that several national courts in Europe and Latin America32 have applied the doctrine of the right to be forgotten. In Latin America the discussion evolves around similar conceptual topics as sketched earlier in this chapter.33 In Europe, Italian and French courts have ordered search engine operators to block access to data. 22.3.3 Positive Law 22.3.3.1 EU General Data Protection Regulation The European Commission submitted to the European Parliament the draft text of the General Data Protection Regulation on 25 January 2012. The Commission proposed to include Article 17 with the title ‘Right to be forgotten and to erasure’. During the proceedings at the Parliament it was proposed to delete the term ‘the right to be forgotten’, since according to the report of the parliamentary proceedings this is misleading, and neither legitimate nor realistic.34 The regulation was adopted on 27 April 2016 and became effective as of 25 May 2018.35 The text of the regulation mentions the right to be forgotten four times: three times in the preamble and once in Article 17. The mention in the preamble implies that the right to be forgotten exists: a data subject should have a ‘right to be forgotten’ (para. 65), the right to be forgotten has to be strengthened in the online environment (para. 66) and member states are authorised to give specifications and derogations in relation to many rights, including the right 28

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CJEU, Case C-136/17, G. C. and Others (Déférencement de données sensibles) – in the questions asked from the Court, the expression ‘the right to be forgotten’ is not used. European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, in force 3 September 1953, 213 UNTS 221. ECtHR, Tammer v. Estonia (Appl. no. 41205/98), judgment, 6 February 2001, para. 62. ECtHR, Wegrzynowski and Smolczewski v. Poland (Appl. no. 33846/07), judgment, 16 July 2013, para. 65: ‘it is not the role of judicial authorities to engage in rewriting history by ordering the removal from the public domain of all traces of publications which have in the past been found’. According to Carter, courts in Argentina are willing to grant to celebrities control of the use of their images online; see E. L. Carter, ‘Argentina’s Right to Be Forgotten’ (2013) 27 Emory International Law Review 23. For further insight into the Latin American perspective, see A. Del Campo (ed.), Towards an Internet Free of Censorship II, Perspectives in Latin America (Palermo: Facultad de Derecho, Universidad de Palermo, 2017). See European Parliament, Report on the proposal for a regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation), 22 November 2013, A7-0402/2013. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR), OJ 2016 No. L 119, 4 May 2016.

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to be forgotten (para. 156). Article 17 has the heading ‘Right to erasure’ (‘right to be forgotten’). How else to comment on the heading of Article 17 than to use the famous expression of Hercule Poirot when he addresses Chief Inspector Japp:36 Someone has been thinking again! The fundamental problem with the wording of Article 17 is the combination of the right to erasure and the right to be forgotten into one right. This wording gives the impression either that the two rights overlap or that the right to be forgotten is a specific right (lex specialis) in relation to the right to erasure. Neither interpretation is correct. 22.3.3.2 Legislation Elsewhere In the Asian region, South Korea is reported to have something close to the right to be forgotten. Doctrinally, this right in South Korea is based on the constitutional right to self-determination. A right to request blocking the use of data (not to have it deleted) exists in Macau, Malaysia, the Philippines and Taiwan.37 Mario Viola de Azevedo Cunha and Gabriel Itagiba report that constitutional provisions in several South American countries can be read as including the right to be forgotten due to interpretation by courts.38 They argue that the EU data protection legislation will serve as a beacon for legislation in Brazil – especially regarding the right to erasure. Carter reports that the law in Argentina began, decades ago, to recognise the dangers of eternal memory, and the right to rectify the holding of unnecessary personal data has constitutional protection.39 Francis Augusto Medeiros and Lee A. Bygrave indicate that the internet legislation in Brazil falls short of recognising the right to be forgotten, as it concerns only data provided by the data subjects themselves.40 This assessment regarding Brazil is not fully correct, as the right to be forgotten also includes this type of data. 22.3.4 Stakeholders The Google judgment had an immediate activating effect on stakeholders. Within a few weeks the Article 29 Working Party announced that it would analyse the judgment and publish practical guidelines on how to put the judgment into practice.41 Google announced that it would set up an independent working group to do the same. The Article 29 Data Protection Working Party adopted the guidelines on 26 November 2014.42 The guidelines are to be seen, according to their text, as ‘a flexible working tool which aims at helping data protection authorities during the decision-making processes’43 in handling complaints regarding delisting by search engine operators. The guidelines are based on the assumption that search engine operators are responsible for the assessment of the request for 36

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The world-famous Belgian detective from Agatha Christie’s novels used the phrase when chief inspector James Harold Japp offered a theory – always wrong – as to how to resolve the case: ‘Chief inspector, you have been thinking again!’ See ‘Agatha Christie's Poirot’. Quotes.net. STANDS4 LLC, 2019. 23 July 2019, www.quotes.net/movies/agatha_ christie%27s_poirot_quotes_100161. G. Greenleaf and W. Park, ‘South Korea’s Innovations in Data Privacy Principles:  Asian Comparisons’ (2014) 30 Computer Law and Security Review 492 at 503. M. V. de Azevedo Cunha and G. Itagiba, ‘Between Privacy, Freedom of Information and Freedom of Expression: Is There a Right to Be Forgotten in Brazil?’ (2016) 32 Computer Law and Security Review 634. Carter, ‘Argentina’s Right to Be Forgotten’, 32. F. A. Medeiros and L. A. Bygrave, ‘Brazil’s Marco Civil da Internet: Does It Live Up To the Hype?’ (2015) 31 Computer Law and Security Review 120. F. Gilbert, ‘Article 29 Working Party Supports European Court of Justice “Right to Be Forgotten” Rule’ (2014) 31 The Computer and Internet Lawyer 18. Available at www.dataprotection.ro/servlet/ViewDocument?id=1080. Ibid., p. 5.

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data removal or blocking and give thirteen criteria44 to be used on a case-by-case basis – time is among these criteria. The balance to be achieved is dependent on the role of the data subject in public life.45 The Working Party encourages search engine operators to publish their own delisting criteria and make detailed statistics available.46 In short, horizontal protection by private online search engine operators should be the doctrinal approach and the method to be used is balancing. The Google Advisory Council47 thinks that the CJEU, in Google, does not establish a general right to be forgotten, but rather the right of an individual to appeal against the processing of his or her own data.48 The conceptual framework is driven from the rights to privacy, data protection, freedom of expression and access to information.49 It gives four general criteria for assessing delisting requests (the role of the data subject in public life, nature of the information, source of the information and time) – these criteria are among those mentioned in the Article 29 Working Group Guidelines. Although some experts suggested that Google should provide detailed explanations of its decisions, the recommendations limit the request for transparency to making guidelines publicly available and providing anonymised statistics.50 Such activity of global internet companies to establish their own rules is part of the more general tendency of these companies to solidify and define their role in horizontal human rights protection mechanisms. There is apparent lack of reliance on human rights theory. When the council writes that ‘it is the conclusion of the majority that there are competing interests that outweigh the additional protection afforded to the data subject’,51 it does not explain why the privacy right needs to give way to other considerations. This is just one example of the lack of theoretical explanation when the statement clearly calls for this. 22.3.5 Concluding Note on the Aspect of Recognition It can be concluded from the short observations above that the right to be forgotten is formally recognised sporadically across the globe through legislation and court jurisprudence. This conclusion applies to a minority of the world’s legal community. Recognition in positive law, or its absence, does not indicate whether the particular right exists or not, but it may indicate whether the claim of a new human right is doctrinally rooted in dynamic interpretation of an existing human right. The right to be forgotten was applied by the courts prior to its formal recognition in EU legislation and elsewhere, because the courts applied the right to privacy. The ‘existence’ and ‘recognition’ of a human right are separate categories – the latter referring to a formal aspect and the former referring to discursive practice. This discursive practice needs to reach a certain intensity, both geographically and among stakeholders, before a claim to a new human right

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These are: if the search result concerns a natural person, the role of the data subject in public life, if the data subject was a minor, the accuracy of the data, whether data is relevant, whether information is sensitive, is the data up to date, is prejudice caused by processing, will the data subject be put at risk, the context of the publication of data, was the original content published with journalistic purpose, is there a legal obligation to make the data publicly available, does the data relate to a criminal offence. Article 29 Data Protection Working Party Guidelines, p. 2. Ibid., p. 10. The Advisory Council to Google on the Right to be Forgotten, 6 February 2015, available at https://archive.google .com/advisorycouncil/advisement/advisory-report.pdf. Ibid., p. 3. Ibid., p. 4. Ibid., p. 21. Ibid., p. 19.

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can be said to exist as a separate human right. Such intensity has been reached with the right to be forgotten – this right exists. It is recognised by EU legislation but, despite the popular legal narrative, not by the jurisprudence of the European regional courts (the Court of Justice of the EU and the European Court of Human Rights).

22.4 Rhetoric 22.4.1 Introductory Notes Rhetoric characterises the intensity of the discursive practice surrounding a new human rights claim, having the potential to lead to the justification of a self-standing new human rights norm. Rhetoric alone cannot lead to the justification or rejection of a new human right, but it can accelerate academic conceptualisation and political recognition. Usually, the rhetoric starts with the stakeholders. The formal recognition of a new human right by a policy organ or its application by a regional court (even if this court does not rely on this right, but nevertheless refers to it as ‘a right’ – as was the case with the Google judgment at the CJEU) leads to an immediate increase in academic and stakeholder discourse. This has also been the case in reference to the right to be forgotten. Therefore, the rhetorical component of a new human right can have two waves – one starting with the introduction of the idea of a new human right and its conceptual justification, and another originating from formal recognition. The rhetoric associated with the introduction of an idea of a new human right and its subsequent development may be indispensable to achieving the discourse necessary for claiming the existence and recognition of this new human right. Those who write that the term ‘right to be forgotten’ is misleading and there is no such right52 overlook the rhetorical aspect in human rights development. Without the right’s intriguing name, the discussion probably would not have obtained the present magnitude, which in itself would mean less protection for the right to privacy online. 22.4.2 Examples of Rhetoric Associated with the Right to Be Forgotten 22.4.2.1 In Reference to the Internet It is not an exaggeration to state that ‘loaded’ language is usually used when someone writes or speaks about the Internet. This means bringing into the argumentation non-judicial (emotional) expressions. This practice applies to politicians, scholars, stakeholders and the judiciary alike. Some examples may be helpful here. David Erdos reports on Reding having characterised the Google judgment as a clear victory for the protection of personal data of Europeans, and demonstrating that ‘data belongs to the individual and not to the company’.53 Jeffrey Rosen writes about the right to be forgotten as the biggest threat to free speech on the Internet in the coming

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In addition to Google’s Advisory Council, Lynskey calls for the abandonment of the right to be forgotten, as there is only a right to delete when data processing is incompatible with the respective EU legislation: see O. Lynskey, ‘Control over Personal Data in a Digital Age: Google Spain v AEPD and Mario Costeja Gonzalez’ (2015) 78 The Modern Law Review 522 at 528. For comparison, see also La Rue’s statement: ‘The right to privacy and to data protection is a fundamental right intimately linked to the exercise of the right to freedom of expression, and they should be understood as complementary and never in conflict with each other. The right to be forgotten, as such, does not exist.’ F. La Rue, Comments on the Report on the Right to be Forgotten (see above, footnote 44), p. 28. D. Erdos, ‘From the Scylla of Restriction to the Charybdis of Licence? Exploring the Scope of the “Special Purposes” Freedom of Expression Shield in European Data Protection’ (2015) 52 Common Market Law Review 119 at 147.

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decade because of the potential liability of online companies.54 The Internet is full of negative comments by the representatives of various stakeholders regarding the Google judgment. The Advocate General in the Google case was of the opinion that the Internet has revolutionised access to and dissemination of all kinds of information.55 22.4.2.2 Determination of One’s Identity Versus Censorship The right to be forgotten is viewed as a threat to private online identity by some and by others as the tool to protect identity online. Those who write about the threat usually refer to private censorship by online companies that will emerge after the right to be forgotten is recognised.56 Christopher Kuner writes that the data controllers set the rules determining one’s personal identity;57 Ugo Pagallo and Massimo Durante state that it is the Internet, and not you, that tells your personal story.58 Rosen mentions that the right to be forgotten turns Google into censor-in-chief in the European Union.59 Others, writing about the opportunities, mention that the right to be forgotten gives individuals the ability to control their own identity online.60 Martina Gillen states that the vulnerability of internet users in cyberspace is an ontic condition which has been downplayed, but which should lead to the protection of privacy.61 Remolina Angarita writes that the right to be forgotten is important for people in changing their lives without being forever haunted by the ghost of negative information about their past being spread all over the Internet.62 When confronted with two polarised views, as seen above, one is often correct and another is not. In the present case, both viewpoints are correct. This is the case if we recognise private censorship as inevitable in the internet era. The right to be forgotten then becomes a principle for protecting the right to privacy in the conditions of private online censorship. As such, this principle assumes the function of bringing order – something which is often called for by stakeholder groups in relation to protecting fundamental rights on the Internet.63 Within the function of bringing order into the protection of human rights digitally, the factor of time and the issue of private censorship lead to the introduction of the right to be forgotten as a generic human rights principle.

22.5 Finalising Discussion: Private Censorship and the Matter of Time The issue of private censorship is an epistemic component of the realisation of the right to be forgotten. Those who object to the legitimacy of private online censorship, either for

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Rosen, ‘The Right to Be Forgotten’, 88–92. Fines are calculated on the basis of global turnover, which is the entry of the punitive remedies concept into the European human rights landscape, but is not the focus of this chapter. Opinion of Advocate General Jääskinen, Case C-131/12 (Google Spain), 25 June 2013, EU:C:2013:424, para. 121. See, for example, D. Lindsay, ‘The “Right to be Forgotten” by Search Engines under Data Privacy Law: A Legal Analysis of the Costeja Ruling’ (2014) 6 Journal of Media Law 159. Rosen, ‘The Right to Be Forgotten’, 92. Pagallo and Durante, ‘Legal Memories and the Right to be Forgotten’, p. 17. Kuner, ‘The European Commission’s Proposed Data Protection Regulation’, 11. G. Sartor, ‘The Right to Be Forgotten in the Draft Data Protection Regulation’ (2015) 5 International Data Privacy Law 64. M. Gillen, ‘Human Versus Inalienable Rights: Is There Still a Future for Online Protest in the Anonymous World?’ (2012) 3 European Journal for Law and Technology 1. Remolina Angarita, ‘Right to Be Forgotten in Cyberspace?’, p. 99. For example, the UN Internet Governance Forum – a multi-stakeholder platform to facilitate discussion of public policy issues pertaining to the Internet, existing under the authority of the UN and involving a large number of stakeholders, primarily human rights activists and representatives of service providers – calls for guidelines to govern the Internet: ‘There is a need to more clearly investigate and define corporate (including platform and intermediary)

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constitutional or practical reasons, at the same time object to the idea of the right to be forgotten because this right can only be implemented horizontally. This line of thought started with the La Rue report and has found its recent manifestation in the draft Recommendation on Internet Intermediaries by the European Council’s Committee of Ministers.64 If this view is to prevail, the goal of achieving some order in internet-related human rights protection suffers. The objectors to the right to be forgotten do not take into account the element of time  – more precisely, the absence of time as a regulating factor. Time brings natural order into social relationships; consequently, in the digital world this role is served by a separate compensatory human rights principle  – the right to be forgotten.65 The Google judgment introduced the element of time in understanding ‘the right’,66 as time may change the relevance of information. Giovanni Sartor points out that the passage of time may reverse the balance of interests involved in the processing of personal data.67 Alexander Tsesis mentions that the time frame is significant in the implementation of the right to be forgotten.68 Paulan Korenhof and colleagues have devoted an entire essay to the exploration of the element of time in the context of the right to be forgotten.69 The right to be forgotten is thus a generic principle for all digital relationships, guaranteeing the presence of time in digital reality. It is generic, because its goal is to provide order, dependent on time, to the task of balancing the right to privacy against the freedom of expression and other legitimate interests apparent on the Internet. It is not the only principle for providing order, but it establishes the time-related frame. Other principles may exist before the right to be forgotten starts to apply. This right does not exist outside the Internet, at least so long as no other comparable technologies where time stops are invented. And finally– the right to be forgotten has the goal of bringing a moral dimension into the Internet.

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responsibility for protecting human rights; but state responsibilities should not simply be transferred to the private sector.’ The 10th Internet Governance Forum (IGF), Evolution of Internet Governance, Part I: Summary of IGF 2015, 2016, p. 12, available at www.intgovforum.org/multilingual/index.php?q=filedepot_download/3367/208. Recommendation CM/Rec(2018)2 of the Committee of Ministers to member States on the roles and responsibilities of internet intermediaries, 7 March 2018. In para. 1.3.4. of the Draft Recommendation, the Committee of Ministers was expected to express the opinion that ‘state authorities should not, through legal or extra-legal means, compel or incentivise Internet intermediaries to determine the lawfulness of third-party content or to censor lawful communication’. However, this did not make its way into the final document. In this respect, time is not a legal category, as opposed to the statute of limitations. The right to be forgotten may emerge after the affected person has lost the possibility of bringing a claim against the author of the information in the original source due to statute of limitations. CJEU, Google Spain SL, Google Inc. v. Agencia Espańola de Protección de Datos (AEPD), Mario Costeja González. G. Sartor, ‘The Right to Be Forgotten: Balancing Interests in the Flux of Time’ (2016) 24 International Journal of Law and Information Technology 72 at 72. A. Tsesis, ‘The Right to Erasure: Privacy, Data Brokers, and the Indefinite Retention of Data’ (2014) 49 Wake Forest Law Review 433 at 74. P. Korenhof et al., ‘Timing the Right to Be Forgotten: A Study into “Time” as a Factor in Deciding about Retention or Erasure of Data’, in S. Gutwirth, R. Leenes and P. de Hert (eds.), Reforming European Data Protection Law (Dordrecht: Springer, 2015), p. 199.

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23 The RTBF 2.0 Oscar Raúl Puccinelli

23.1 Introduction: A ‘Right’ that Is a Principle In his suggestive chapter, Mart Susi makes an exhaustive analysis of the origin and implications of the so-called ‘right to be forgotten’ (RTBF), thus contributing to its consolidation, not as a right but as a general principle applicable to digital relations which must be recognised ‘for its goal of bringing a moral dimension to the Internet’.1 His clear objective is to make the principle settled by a key Human Rights Council (UNHRC) resolution2 – that every human being must have the same rights both online and offline – become reality. In analysing whether a ‘right’ to be forgotten can be effectively referred to and circumscribed to its online version, Susi goes beyond the framework put forward by Robert Alexy for national constitutional law,3 stating that this ‘new human right’ cannot be thus considered, because to reach such category it must meet the characteristics of being moral, universal, fundamental, abstract and prior over all other rights, and in fact it cannot claim universality and fundamentality due to its limited application within the digital field. Thus, Susi’s proposal aims at recognising the alleged right as a new generic legal principle for all digital relations – and only for them, since it guarantees the presence of time in the digital reality and it does not exist outside the Internet, at least as long as other comparable technologies making time stand still are not invented – granting a temporal order through the balance between the right to privacy and the right of freedom of speech. This approach is certainly original  – even though some non-specific lateral references aligned with this perspective can be found, as Susi himself points out, and to which some other definitions put forward in a 2010 ruling in Argentina may be added4  – and is, in this regard, aligned with Alexy’s and Dworkin’s theories. Alexy, in addition to distinguishing between principles and values, analyses the difference between principles and rules, stating that principles are optimisation commands that can be fulfilled to varying degrees because they have a relatively high level of generality (e.g. all have religious freedom) while rules have a relatively low level of generality (e.g. church bells may 1 2

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M. Susi, in this volume, p. 299. UNHRC, Resolution 32/13 on The Promotion, Protection, and Enjoyment of Human Rights on the Internet, 29 June 2012, UN Doc. A/HRC/20/L.13. R. Alexy, Teoría de los derechos fundamentales, 2nd ed. (Madrid: Centro de Estudios Políticos y Constitucionales, 2012). For example, in the Petrilli case judges considered the RTBF as a principle indicating that certain negative information must be removed after a prudential time has passed in order to prevent the individual from being a prisoner of their past (La Ley Online, AR/JUR/9882/2010).

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ring at specified times) and can only be fulfilled or not. The same author acknowledges that this scheme can be found in the thought of Dworkin, who with subtle differences also concludes that valid rules are applicable on an ‘all or nothing’ basis, whereas principles have only a reason indicating a direction that may not result in a particular decision.5 Distinguishing rules, principles, values and maxims is the subject matter of many different views in the legal theory scenario and may lead to different conclusions. This is not the place to address such issues, but to understand that Susi’s rationale is aligned with Alexy’s point of view and states that the so-called ‘right’ to be forgotten is not a right but a principle, and consequently a norm ordering that something be done to the greatest possible extent  – since, as has been said, principles imply optimisation mandates and therefore do not imply definitive mandates. Moreover, said goal must be reached within the actual and legal possibilities of a specific scenario governed by opposite principles and rules.6

23.2 The Principle and Its Limitations Susi’s rationale in regard to the RTBF is further clarified through Alexy’s explanations on how to solve conflicts of rules and conflicts of principles. While the former are to be resolved in the scope of validity and through the creation of an exception, the conflict of principles (when one principle indicates that something is prohibited and another that something is allowed) are not to be solved in the validity arena, but instead in the scope of balancing, under the governing law of collision. According to the circumstances of the case, a relationship of conditioned precedence is established between the principles: the strongest prevails over the other if certain conditions are assumed by the court in its deliberation process. This is precisely what systematically happens in the cases in which the RTBF is invoked, even from its first version (‘RTBF 1.0’), developed before the appearance of the Internet and search engines in relation to films, documentaries and television and radio news, where several court decisions issued in the USA and Europe addressed the tension between privacy and publicity.7 Alexy himself offers us a detailed analysis of the collision of principles through a legendary ‘RTBF 1.0’ case decided by the German Federal Constitutional Court (‘the Lebach case’8), where precisely that collision was solved in favour of the RTBF by applying a three-level analysis: (1) at the first level, a tension between two principles is identified: the protection of personality and the freedom to information, which the court proposes to solve through a deliberating process of balancing rights, since neither legal norm is invalid nor does it have absolute precedence over the other; (2) at the second level, the court establishes a general or basic precedence of the freedom to information, which has a ceteris paribus clause allowing exceptions; and (3) at the third level, the court notes that the protection of personality prevails over freedom to information in cases in which the repetition of information about a serious crime that is no longer of public interest jeopardises the perpetrator’s resocialisation process. Consequently, 5

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R. Dworkin, Taking Rights Seriously, 2nd ed. (London: Bloomsbury Academic, 1978), pp. 24, 26, quoted by Alexy, Teoría de los derechos fundamentales, p. 80. Alexy, Teoría de los derechos fundamentales, pp. 67–68. Some cases often referred to in the legal theory scenario are, e.g., in the USA: Brents v. Morgan, 221 Ky. 765 (1927); Melvin v. Reid, 297 P. 91 (1931); Mau v. Rio Grande Oil Inc., 28F. Supp. 845 (1939); Marvin Briscoe vs. Readers’ Digest, 4 Cal.3d 529 (1971); the latter case involved similar elements to those in the Lebach case (see the following text and footnote), as analysed by Alexy. German Federal Constitutional Court, 1973, BVerfGE 35, 202.

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in the case to be decided, publication is to be banned based on the following four factual assumptions that lead to a clear conclusion: repeated television information (A1), which is no longer of public interest (A2) on a serious criminal offence (A3) and which endangers the perpetrator’s resocialisation process (A4), is constitutionally prohibited.9

23.3 The ‘New Human Rights Principle’ and Its Regulation Susi’s proposal is supplemented when, first, he defines the RTBF as a ‘human rights principle’ that is not only new (since the difficulties of protecting online privacy are new) but also restricted to protecting privacy in the online dimension (where time and private censorship make it distinctive). He then reminds us that although there are important developments in the legal theory arena, no such thing occurs in the human rights framework10 – referring, for example, to the lack of reference to the term ‘right to be forgotten’ in the Costeja case11 and to countervailing precedent by the European Court of Human Rights (The Sunday Times v. The United Kingdom).12 This second version of the RTBF is not consistently recognised in the Latin American context – as happens in the rest of the world – as the privacy laws of this region are clearly based on the European model. However, it can be found, for example, in the 787 Nicaraguan Act of 2012, in which section 10 provides for the ‘right to be digitally forgotten’ in social networks, browsers and servers, and in section 11 of the 2012 decree 3755 of Costa Rica, which provides for the ‘right to be forgotten’ by setting a ten-year expiration term from the occurrence of the relevant event. Also, it can be constructed through the joint application of other provisions such as Articles 23 and 47.1 of the Mexican General Law on Data Protection in Possession of Obligated Subjects of 2017 and through the provisions of Article 28.1. of the Standards for Personal Data Protection for Ibero-American States approved by the Ibero-American Data Protection Network (RIPD, after its Spanish name), which provides to the holder the right to ‘oppose the treatment of their personal data when:  a. They have a legitimate reason resulting from their particular situation’. The right has also been recognised by administrative decisions of several supervisory bodies (e.g. the INAI (National Institute for Transparency, Access to Information and Personal Data Protection) in Mexico has resolved several issues related to the exercise of the right to be digitally forgotten) and by court decisions in which there have been different points of view as to the right’s existence and scope. In Colombia, the Constitutional Court’s sentence T-277/15 of 201513 ordered that the digital version of a newspaper be updated to reflect the exoneration of the appellant and that internal searches did not allow external access to this information. Previously, the RTBF had been recognised in its first version in judgment T-424/1992 in regard to negative financial data (that at the time was not subject to any relevant legal provisions and so had no expiration date), and much more recently in judgment T-439/09, where the high court ordered the blurring of the image of a woman who appeared in a documentary of public interest.

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Alexy, Teoría de los derechos fundamentales, pp. 76–78 and 142 (my translation). Susi, in this volume, e.g. at pp. 289f. Case C-131/12, Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos (AEPD), Mario Costeja González, judgment, 13 May 2014, ECLI:EU:C:2014:317. ECtHR, The Sunday Times v. the United Kingdom (Appl. no. 6538/74), judgment, 26 April 1979. Available at www.corteconstitucional.gov.co/relatoria/2015/t-277-15.htm.

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The Chilean Supreme Court, on the other hand, ordered the removal of a story in the digital portal of a newspaper concerning a police officer who had committed a sexual offence a decade earlier,14 and the Supreme Court of Justice of Brazil applied the RTBF to television documentaries linked to past criminal acts (the Curi15 and Chacina da Candelária16 cases), but did not extend such doctrine to internet search engines (Xuxa Meneguel17 case). Finally, at a regional level the American Convention on Human Rights,18 due to its technological context, does not include data protection rules and only refers to the right to privacy and the right to freedom of expression. Despite this, the projections of such provisions on the RTBF has been analysed by the Special Rapporteur for Freedom of Expression (RFOE) of the Inter-American Commission on Human Rights (IAComHR), specifically in the Standards for a Free, Open, and Inclusive Internet,19 where compatibility of the RTBF with the inter-American human rights system is questioned, particularly considering the negative impact on the freedom of expression in its dual dimension (individual and collective) of measures to remove and deindex internet content adopted by private companies administering and managing specific web pages, platforms or apps, as well as those requested by states. This rationale also leads to the conclusion that government limitations on internet content must be decided by a competent, independent and impartial judge or court granting due process guarantees, as established in Article 8 of the American Convention on Human Rights.

23.4 The RTBF’s Main Features Principle or right, through the aforementioned antecedents it is possible to establish the following features of the RTBF, in both versions: (1) as to conditions of precedence, the information in question must be true and must have been legitimately published at some time in the past (there are no clear guidelines on this), it must have lost informational relevance and disclosure of it may imply personal harm to the claimant; (2) in terms of protected legal rights, there are references to data protection, privacy, image, honour, dignity, freedom, rehabilitation, personality development and life project, etc.; (3) as to active legal standing, so far it has not only been recognised for individuals, but is also expected to be applied to legal persons; (4) as to passive legal standing, it has been used against databases, journalistic media (print, audio-visual and digital content), books, magazines, internet search engines, etc.;

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Causa no. 22243/2015 (Apelación), Resolución no. 36142, 21 January 2016, available at https://corte-suprema-justicia .vlex.cl/vid/grazaiani-fort-aldo-empresa-592147998. Recurso Especial no.  1.335.153  – RJ (2011/0057428-0), available at www.conjur.com.br/dl/direito-esquecimentoacordao-stj-aida.pdf. Recurso Especial no.  1.334.097  – RJ (2012/0144910-7), available at www.conjur.com.br/dl/direito-esquecimentoacordao-stj.pdf. Rcl 15955 AG R/RJ, available at:  https://flaviotartuce.jusbrasil.com.br/noticias/142265662/direito-ao-esquecimentoxuxa-x-google-julgamento-no-stf. American Convention on Human Rights, San José, 22 November 1969, in force 18 July 1978, 1144 UNTS 123. Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Edison Lanza, Standards for a Free, Open, and Inclusive Internet, 15 March 2017, OEA/Ser.L/V/II, CIDH/RELE/INF.17/17, available at www.oas.org/en/iachr/expression/docs/publications/internet_2016_eng.pdf. The same document states that it ‘reviews current principles and summarizes the Inter-American case law … The aim of this report is to assist the member States in their efforts to incorporate a human rights-based focus in the design, development, and implementation of policies affecting the Internet’.

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(5) as regards the right’s scope, in addition to the temporal aspect (since in general the harmful information is time-sensitive and the right cannot be exercised before the information loses public relevance), it should not involve a public interest situation (the exercise of the right to freedom of expression, historical, statistical and scientific research, public safety, etc., are jeopardised more by the existence of private censorship in the case of the RTBF 2.0); (6) as to the means to enforce the right, it has been ordered that data be updated, corrected, made anonymous or pseudonymised, blocked and cancelled. It has even been ordered – only in the RTBF 2.0 version – that data be delisted from internal and external search engines and that other information links be added; and (7) as to how to guarantee the right, two types of problem have emerged: first, concerning who decides what information will be affected by forgetfulness (which leads to a heated discussion as to whether the stakeholders may solve that issue in a sort of private censorship scenario); second, concerning administrative mechanisms (proceedings before data protection control bodies) and ancillary proceedings (the Latin American habeas data).20

23.5 Rights that Began as Principles and Principles that Began as Rights In Warren and Brandeis’ famous article ‘The Right to Privacy’21 there is a clear demonstration of how some ‘old’ rights set forth by common law (the right to life, the right to freedom, the right to property, etc.) have broadened their scope in tune with human and technological progress, implying new demands and the correlative duty of providing new weapons to fight the recent and growing yellow press phenomenon, supported by new technologies of instant messaging and of image capture and reproduction, such as the telegraph, the telephone, the rotary press and the portable camera. Therefore, based on the ‘right to be let alone’ – actually limited by Thomas M. Cooley22 in scope to personal immunity, unless subject to physical or psychological violence – they detected a principle underlying every traditional area of common law (such as contracts, property, trusts, copyright, protection of trade secrets and torts) and devised a new right ‘to privacy’ that is clearly useful for fighting the negative impacts of modern infotainment, but with limitations, because it did not prohibit publication of: (1) matters of public or general interest, since it covered only matters of private life, habits, acts and relationships of an individual who is not linked to public or semi-public activity; (2) communications that may be considered privileged under defamation law, except where there is special damage involved; (3) oral publications in absence of special damage; (4) private matters published by the interested party or with his or her consent.

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The Brazilian constitution (1988) provides for the writ of habeas data, which provides citizens with a tool to access and correct information about themselves held by third parties. It has influenced several other Latin American countries to adopt similar and even more complete provisions, and it was taken as the root of a new Latin American data protection framework. S. D. Warren and L. D. Brandeis, ‘The Right to Privacy’ 1890 (4) Harvard Law Review 193. T. M. Cooley, A Treatise on the Law of Torts or the Wrongs which Arise Independent of Contract (Chicago: Callaghan, 1879).

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They added that neither the truth of the publication nor the absence of malice in the publisher affords a defence, and that this right should be protected by criminal law and in court through claims for damages (including damages to feelings as injunctive relief). But they ended up establishing – and this is the fundamental point – that the protection of society should come mainly through the recognition of such a right to privacy. The balanced nature of the proposal granted its success through time. In fact, similar to Janus (the ancient Roman god of beginnings, gates, transitions, time, duality, doorways, passages and endings, who is usually depicted as having two faces), the article was written by Warren, who was more interested in strengthening the idea of privacy (for he was affected by the intrusion of newspapers into matters of his family life) and Brandeis, who, based on the ideas published by James Bryce a decade earlier, was more interested in the duty of publicity as its counterpart in the law of privacy.23 Other rights conceptually close to privacy also began as principles, such as the ‘right to informational self-determination’, which was extracted from the principles of human dignity and self-development by the German Constitutional Court in a 1983 ruling that held the law of the population census of the previous year as invalid24 and provides individuals with the power to decide themselves about issues of collection, disclosure and use of their personal data. Conceived by then as a right, it nowadays remains a part  – although essential and maybe as one of the principles – of the ‘right to data protection’, which has been expressly recognised since 2000 in the Charter of Fundamental Rights of the European Union25 and in various constitutions. Similar processes have taken place with other ‘ICT rights’ still awaiting homogeneous regulation on an international scale, due to the complexity of the regulations involved and the multiple interests that are at stake. These include the right of access to the Internet that has formally been emerging since around 2000 and is swiftly consolidating as a right that contains various principles (universal access, openness and accessibility, pluralism and diversity, nondiscrimination, net neutrality and multisectoral governance).26 Turning back to the RTBF, it has evolved in a similar fashion to the right to privacy and its derivations, and has many points in common and connections with the other rights mentioned above. It is clear that the RTBF has been applied and will further be applied in different scenarios. In the beginning it was used to balance abuses implied in the content of mass media and the press (newspapers, radio and television broadcasting networks, and even books, magazines and street posters). Later, in the computer era it was extended to protection of personal data located in databases still inaccessible through the Internet. The general principle that was set forth concerned the suppression of personal data that was no longer necessary for the purposes for which it had been collected. Moreover, specific terms were provided in relation to negative financial data, through the setting of an expiration date regardless of debt enforceability. 23

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Letter from Louis D. Brandeis to Alice Goldmark Brandeis (1 December 1918), in M. I. Urofsky and D. W. Levy (eds.), Letters of Louis D. Brandeis, 4 vols. (Albany, State University of New York Press, 1975), vol. IV: 1916–1921: Mr. Justice Brandeis, pp. 514, 515. German Federal Constitutional Court, Volkszählung (1 BvR 209, 269, 362, 420, 440, 484/83), judgment, 15 December 1983, BVerfGE 65, 1. Charter of Fundamental Rights of the European Union, Nizza, 7 December 2000, in force 1 December 2009, OJ 2012 No. C 326/2, Art. 8: Protection of Personal Data: ‘1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority.’ See further the chapters on the right to internet access by O. Pollicino and B. Çalı, in this volume.

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Thus – and essentially in court as in the Lebach case analysed by Alexy – it was held that certain negative facts, recognised as true facts having occurred in the past, which had been legitimately published at that time but which, if still available to the general public through a new publication, would imply harm for the involved perpetrator of the crime or offence in question, could not be disclosed. More recently, the context surrounding this right  – or principle  – is characterised by the use of PCs, search engines and indexing mechanisms, unlimited data storage and contenthosting, social networks, cloud computing, massive data, artificial intelligence and the ‘Internet of Things’ (according to Remolina Angarita, the ‘Internet of Corporations’).27 The ‘RTBF 1.0’ background in the context of the ‘web 2.0’ undoubtedly led to the emergence of the ‘RTBF 2.0’, for which both Viktor Mayer-Schönberger and Viviane Reding have been battling, and that is an essential tool for achieving a more human Internet, as mentioned by Susi. Fortunately, but not without advances and setbacks in its gestation, it was finally included in Article 17 of the EU General Data Protection Regulation 2016/679 (GDPR), but erroneously conceived of only as one of the possibilities granted by the right to erasure, even though it was more widely regulated in the previous drafts. As can be seen from the aforementioned evolution of several rights and principles specifically linked to ICT evolution, nothing seems to be definitive and it is hard to predict when and how the ‘old’ rights and principles will be resized or unfolded in the future. The promised ‘web 3.0’ and even the predicted ‘web 4.0’ will surely bring new challenges for the protection of privacy and of other individual and collective rights that we will have to face, as always, with a great dose of imagination and within the framework of human rights.

23.6 Final Remarks: The RTBF in Europe and Beyond Returning to the beginning, Susi’s perspective is perfectly aligned with the solution to the tensions raised in the previous versions of the GDPR by means of a mere mention of the RTBF in the epigraph of Article 17, as previously discussed. However, outside Europe, the rationale that the RTBF is only a generic principle poses important difficulties. Since Susi’s theory is an academic production that requires the correct understanding of the concepts involved, which also depend on specific theories, transferring it to universal legal arenas in which these theories have different degrees of popularity may imply its underestimation. In short: if the principle is not expressly recognised by the law or does not rank as a listed right (which is a less remote possibility), its plain and worldwide applicability may be weakened. This second perspective of analysis is also perfectly compatible with Susi’s rationale because: (1) in the Lüth case the German Constitutional Court stated that ‘constitutional rights have not only the character of rules but also the character of principles’;28 (2) the RTBF, as with many other rights, can be extracted from general principles (e.g. from dignity, as is frequently used by constitutional and supreme courts to extract new rights) and from others specifically contained in data protection laws (e.g. storage limitation and negative data expiry). If it is not expressly recognised, the typical collision with the freedom of expression may affect its enforceability, especially in countries that do not have an explicit conventional or constitutional rule (such in the Inter-American human 27

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N. R.  Angarita, ‘Internet de las empresas’, 28 June 2016, available at https://habeasdatacolombia.uniandes.edu.co/ ?p=2222. See R. Alexy, ‘Constitutional Rights, Balancing, and Rationality’ (2003) 16 Ratio Juris 131 at 133.

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rights system, according to the interpretation settled by the above-mentioned RFOE’s Standards); (3) many legal systems are still tied to positivism, and as it is neither the case that all constitutions expressly regulate the principles, nor that those that recognise them contain an exhaustive list, recognising the RTBF as a listed right could help with its enforcement; and (4) it is generally admitted that some basic principles (such as equality or dignity) generate subsequent and identical so-called rights. In short, we could discuss the nature, scope and limits of the RTBF in its digital version, but it cannot and should not be denied. We must sustain it – either as a principle or as a right – and give it the maximum possible deployment, precisely because of its moral role in a more complex technological world that must grant, as stated, equal rights both on- and offline. Otherwise, just as the ‘RTBF 1.0’ emerged as a solution to the tensions that appeared in the context of ‘old’ information technologies, it is imperative to adapt this consolidated offline version to the online environment, where the defence of human rights becomes more difficult for multiple and obvious reasons, even though we should accept, as is established in the RFOE’s Standards, that in the inter-American human rights system’s scope: ‘[i]f a State decides to adopt personal data protection systems that acknowledge the deindexing that is referred to as the “right to be forgotten” should [sic] do so on an absolutely exceptional basis.’29

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24 The Fruits of Someone Else’s Labour Gestational Surrogacy and Rights in the Twenty-First Century Mindy Jane Roseman

24.1 Introduction The right to found a family, linked to the right to marry, is part of the bedrock of modern international human rights.1 Foundational human rights instruments describe the family as the ‘natural and fundamental group unit of society’, and as such, ‘entitled to protection by society and the State’.2 Subsequent international human rights treaties delve into matters of family reproduction ensuring, for example, that women have access to family planning information and services on an equal basis to men so they can ‘decide freely and responsibly on the number, spacing and timing of their children’.3 Later international political consensus documents herald such reproductive rights as human rights.4 Yet despite occupying such a formidable place in international human rights doctrine, the topics related to family formation are epically contentious. Marriage equality, sex education, sexual identity/gender expression and abortion have been the trip wires of national and international law and politics, as well as human rights advocacy and normative development. Much the same could be said about recognition of the family ‘in all its diverse forms’.5 Intergovernmental meetings on topics such as HIV/AIDS, women’s rights, the environment and children have become protracted occasions where defenders of ‘tradition’ are pitted against promoters of ‘modernity’. States line up according to their understanding of the ‘family’ under international human rights – whether it admits of evolving social norms or must defend the status quo. International human rights law, however, imposes no uniform definition of the family, its formation or the prerogatives of its members.6 As a result, establishing the limits of state authority 1

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Resolution 217A onUniversal Declaration of Human Rights (UDHR), 10 December 1948, UN Doc. A/Res/217 (III) (A), Art. 16(1); International Covenant on Civil and Political Rights, New York, 16 December 1966, in force 23 March 1976, 999 UNTS 171, Art. 23. UDHR, Art. 16(3). Convention on the Elimination of All Forms of Discrimination Against Women, New York, 18 December 1979, in force 3 September 1981, 1249 UNTS 13, Art. 16(e). UN Population Fund (UNFPA), Report of the International Conference on Population and Development, Cairo, 5–13 September 1994, 1995, A/CONF.171/13/Rev.1 and United Nations, Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women, 27 October 1995. Available at http://familywatch.org/wp-content/uploads/sites/5/2017/05/fwipolicybrief_Various_Forms_000.pdf. UN Human Rights Committee (HRC), CCPR, General Comment No. 19: Article 23 (The Family) Protection of the Family, the Right to Marriage and Equality of the Spouses, 27 July 1990, para. 2; Benjamin Ngambi v. France, Communication No. 1179/2003, UN Doc. CCPR/C/81/D/1179/2003 (2004): ‘The Committee recalls that the term “family”, for purposes of the Covenant, must be understood broadly as to include all those comprising a family as understood in the society concerned.’

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and action with respect to reproductive and family matters is one of the most dynamic areas for contemporary human rights. While certain normative frameworks do exist, their application to the emergent situations is far from settled. This is particularly true for the use of assisted reproductive technology (ART),7 a variety of medical interventions developed and perfected in the last few decades to ‘assist’ couples to overcome infertility – obstacles in the way of their biologically based reproductive processes. The World Health Organization defines ART as ‘all treatments or procedures that include the in vitro handling of both human oocytes and sperm, or embryos, for the purpose of establishing a pregnancy. This includes, but is not limited to, in vitro fertilization [IVF] and embryo transfer … and gestational surrogacy.’8 IVF is a technique that combines a female’s ova (or eggs) and a male’s sperm (both also known as gametes) outside the body to grow viable human embryos which can then be implanted to impregnate a woman, either the one who provided the egg or one who did not – a gestational surrogate (e.g. serving in the legal mother’s place). National laws establish safety, eligibility and other requirements regarding access to IVF and gestational surrogacy.9 The techniques themselves, however, permit women and men, single or married, regardless of sexual orientation or age, to become parents, that is to have a ‘child of one’s own’, with no need to contribute their gametes to conceive, or use their uterus to carry a pregnancy. ART has opened novel possibilities for family formation that previously were the stuff of fantasy. It is not surprising, then, that politics, not biology, guard the gates of reproduction in the twenty-first century. In nearly all countries ART can only be accessed after a medical diagnosis. In several countries IVF eligibility is restricted to married heterosexual couples of child-bearing age, and sometimes only if one of the couple donates the ova or the sperm. Some states prohibit or limit monetary transactions to procure gametes (usually ova). Public and/or private health insurance coverage to offset costs is variable, sometimes permitting only a few cycles (if at all), or limited to married heterosexual couples.10 Other states have liberal eligibility rules for IVF access, although the costs may fall on the individual or couple. States that have liberal IVF rules often, but not always, have similarly liberal gestational surrogacy laws. Many states have no regulations at all; those that do may prohibit it altogether or place compensatory/altruistic limitations on the transaction, as well as limiting access to (married) heterosexual couples. What the IVF and surrogacy laws attempt to do is stabilise, reproduce and ‘protect’ that state’s vision of the family – heterosexual, nuclear, genetically related, or a more diverse conception. They also attempt to prevent ‘exploitation’ and dignitary harm felt to be caused by the intrusion of monetised transactions into intimate life.11 7 8

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ART is also known as medically assisted reproduction (MAP); this chapter will use the acronym ART. WHO-ICMART revised glossary, available at: www.who.int/reproductivehealth/topics/infertility/definitions/en/. See also F. Zegers-Hochschild et al., ‘The International Committee for Monitoring Assisted Reproductive Technology (ICMART) and the World Health Organization (WHO) Revised Glossary on ART Terminology, 2009’ (2009) 24 Human Reproduction 2683 at 2685. For the purposes of this chapter, IVF and gestational surrogacy (compensated or altruistic) will be the focus; donor or traditional surrogacy (where the woman gestating the pregnancy also provides the egg) is rarely part of commercial practice and therefore is not the subject of the analysis in this chapter. G. Pennings, R. Klitzman and F. Zegers-Hochschild, ‘International Regulation and Cross-Country Comparisons’, in Susan Golombok et  al. (eds.), Regulating Reproductive Donation (Cambridge:  Cambridge University Press, 2016), p. 39. For a discussion of a range of ART policies related to cost and the number of IVF cycles and embryos permitted, see A. L. Dunn, T. Stafinski and D. Menon, ‘An International Survey of Assisted Reproductive Technologies (ARTs) Policies and the Effects of These Policies on Costs, Utilization, and Health Outcomes’ (2014) 116 Health Policy 238. K. E. Ekman, L. Hellerström and the Swedish Women’s Lobby, ‘Swedish Feminists against Surrogacy’, in M. Davies (ed.), Babies for Sale? Transnational Surrogacy, Human Rights and the Politics of Reproduction (London: Zed Books, 2017), p. 298.

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This entire complex of enabling and constraining laws relating to IVF and gestational surrogacy access is the focus of this chapter:  what do human rights require of states in this age of ART? Do the reproductive rights of all those who desire to form families – no matter their marital status, sexual orientation or age – now include the right to access IVF and/or gestational surrogacy?12 Can we claim they are new human rights, or are they more properly understood as emergent aspects of already existing rights? Does it make a difference whether claims to access ART are couched as civil/political rights or economic/social/cultural ones? If these ‘new’ reproductive rights allow families to be founded that no longer conform to a state’s legal definition or moral sensibilities, what must the state do – defend or amend its laws? What about the rights of children who come into the world because of IVF and surrogacy, and those of the people whose bodies might provide the genetic material and gestational services? How are the fruits of someone else’s labour transferred in such a way that, on balance, everyone’s human rights are respected, protected and fulfilled? To answer these questions, this chapter sorts through the human rights relevant to ART that are formally recognised by international human rights systems – UN treaties and their authoritative interpretations as well as leading cases from regional human rights courts. It also considers advocacy positions which both favour and reject the recognition of a right (or rights) to surrogacy as well as the IVF technology that makes gestational surrogacy possible.

24.2 Reproductive Rights To put ART in context, when, in 1994, the international community recognised reproductive rights as human rights, treating infertility was not the most pressing matter. Articulating reproductive rights was, in large measure, a response to decades of abusive state practices, primarily against women, in the name of economic development and nation-building.13 State population policies in India and Peru, for example, led to forced and coerced sterilisations; contraception was criminalised in most West African nations. Unsafe abortion due to restrictive abortion laws was (and is) the leading cause of maternal mortality among young women in less-resourced countries. The UN International Conference on Population and Development (ICPD) established a mutually constitutive relationship between reproductive health and rights; having information and being empowered to make reproduction decisions was as important to reproductive health as having health services available was to operationalise those choices, and vice versa. Reproductive rights, therefore, bundled together already existing human rights to ensure autonomy in decisionmaking and access to the full range of reproductive health services, including but not limited to rights to health, to life, to marry and found a family, to privacy, to education, to family planning, to enjoyment of the benefits of scientific progress and to non-discrimination.14 Since the 1990s, international human rights norms have established obligations on states to end coercive practices and to create an enabling environment – primarily for women – to enable everyone to control their own fertility, free from coercion, discrimination and violence.15

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This chapter is a small intervention in a copious literature that covers the gamut from enthusiastic recognition of and support for such rights, to more guarded acknowledgements, to vehement denials. See C. Straehel, ‘Is There a Right to Surrogacy?’ (2016) 33 Journal of Applied Philosophy 146. L. Reichenbach and M. J. Roseman, ‘Introduction,’ in L. Reichenbach and M. J. Roseman (eds.), Reproductive Health and Human Rights: The Way Forward (Pennsylvania: University of Pennsylvania Press, 2009), p. 3. ICPD Programme of Action, 1994, para. 7.3, available at: www.unfpa.org/sites/default/files/event-pdf/PoA_en.pdf. Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14:  The Right to the Highest Attainable Standard of Health (Art. 12 ICESCR), 11 August 2000, UN Doc. E/C.12/2000/4; and CESCR,

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The ICPD envisioned the ‘prevention and appropriate treatment of infertility’ as part of state-provided reproductive health services.16 Nonetheless, infertility treatment received far less attention than access to sex education information, contraception, abortion, HIV/AIDS treatment and ending impunity for gender-based violence did. There simply was a paucity of effective and accessible treatment which advocates could rally. Due to the increased availability and success of ART and the relative reduction in cost, coupled with changing social norms around marriage, and sexual orientation and gender identity/expression (SOGIE), rights claims have been mobilised to increase access.17 As present-day practice situates infertility treatments such as IVF and gestational surrogacy in the health care sector, access typically requires a medical diagnosis.18 Medical infertility is defined by the WHO as ‘the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse’;19 this foundational activity  – sexual intercourse  – presumes the heterosexuality of the individuals involved and biologic dysfunction in their reproductive systems, which further bolsters heteronormative family formulation through eligibility criteria, regulations and laws that restrict access.20 Yet this model is under increasing pressure. Human rights norms condemn gender stereotyping as well as the pathologising of sexual expression and other social categories, such as ablebodiedness. From the removal of homosexuality from the Diagnostic and Statistical Manual of Mental Disorders (DSM),21 the revision of gender dysphoria in the International Classification of Diseases (ICD),22 to the ratification of the United Nations Convention on the Rights of Persons with Disabilities,23 social models of human difference have replaced medical ones of disease. Insofar as infertility is considered a disease, de-medicalising it focuses on the social and structural factors preventing individuals from realising their desires to procreate; these factors are, for example, not having a partner, being past child-bearing age or, as a male, not having the anatomy.24 Reconceptualising infertility as a disabling status having biomedical and social/ structural causes, coupled with more inclusive norms surrounding family formation, has the potential to recast states’ human rights obligations. They may have to ensure ART service access to all on the basis of non-discrimination.

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General Comment No. 22: The Right to Sexual and Reproductive Health (Art. 12 ICESCR), 2 May 2016, UN Doc. E/C.12/GC/22. ICPD Programme of Action, para. 7.6. See for example M. N. Petersen, ‘Becoming Gay Fathers through Transnational Commercial Surrogacy’ (2018) 39 Journal of Family Issues 693. See A. V. Bell, ‘The Margins of Medicalization:  Diversity and Context through the Case of Infertility’ (2016) 156 Social Science & Medicine 39; G. De Wert et  al., ‘ESHRE Task Force on Ethics and Law 23:  Medically Assisted Reproduction in Singles, Lesbian and Gay Couples, and Transsexual People’ (2014) 29 Human reproduction 1859. WHO-ICMART glossary, www.who.int/reproductivehealth/topics/infertility/definitions/en/ L. Culley, N. Hudson and M. Lohan, ‘Where Are All the Men? The Marginalization of Men in Social Scientific Research on Infertility’ (2013) 27 Reproductive BioMedicine Online 225. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, available at: http://dsm .psychiatryonline.org/doi/book/10.1176/appi.books.9780890425596. G. M. Reed et  al., ‘Disorders Related to Sexuality and Gender Identity in the ICD-11:  Revising the ICD-10 Classification Based on Current Scientific Evidence, Best Clinical Practices, and Human Rights Considerations’ (2016) 15 World Psychiatry 205. UNGA, Resolution 61/106 on Convention on the Rights of Persons with Disabilities, 24 January 2007, UN Doc. A/ RES/61/106. For a discussion of social or structural infertility, see J. F. Daar, ‘Accessing Reproductive Technologies:  Invisible Barriers, Indelible Harms’ (2008) 23 Berkeley Journal of Gender, Law & Justice 18; at a 2016 WHO review, its infertility definition was under review and reported to include single men, single women, gay men and gay women. The WHO, after a global uproar, had to clarify its position. See www.who.int/reproductivehealth/topics/infertility/ multiple-definitions/en.

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However, the reproductive rights bundling of civil/political rights with economic/social/ cultural rights presents moral and strategic considerations. Individuals may not want to frame their thwarted family desires as illness or disability; they may prefer to champion their claims as civil and political rights matters bearing on private and family life. Depending on legal or jurisdictional grounds, claims to ART pitched in a health rights register might limit access to judicial review, or require creative pleading that may be rejected by courts whose purviews might not extend to health per se. That said, discrimination based on certain statuses can be as repugnant in relation to accessing health services as much as it is to the security of the person. Until the distinctions between these two sets of rights is completely effaced, choice of fora matters.

24.3 In Vitro Fertilisation 24.3.1 International Human Rights United Nations treaty bodies  – the independent, expert entities which issue authoritative guidance to states parties on compliance with international human rights – have only considered IVF under the right to the highest attainable standard of health.25 Both the Committee on Economic, Social and Cultural Rights (CESCR) and the Committee on the Rights of Persons with Disabilities (CRPD Committee) have directed states to ensure non-discriminatory access to information, prevention, diagnosis and treatment of infertility by issuing authoritative guidance to states on, and assessing their application of, human rights standards.26 IVF, as infertility treatment, is governed by the General Comments of these committees. What would constitute impermissible discrimination? Neither of the communications specific to IVF denial have been received by any treaty body, nor are there any concluding comments on country compliance. However, there is good reason to believe that a state is obliged not to prohibit IVF services from being offered.27 Once IVF is offered as a treatment, international human rights instruments prohibit states from discriminating, or treating individuals unequally based on sexual orientation, race/ethnicity and disability, as well as (arguably) age and marital status.28 Therefore, a reasonable case could be made that denying an individual or couple access to (or public funding for) IVF because of their sexual orientation, marital status or age violates human rights. According to the CRPD Committee, no distinction that is based on disability is justifiable.29 25

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International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, in force 3 January 1975, 993 UNTS 3, Art. 12(1), and UN Convention on the Elimination of All Forms of Discrimination against Women, Art. 12(1). CESCR, General Comment No. 22, The Right to Sexual and Reproductive Health, para. 45; and CRPD Committee, General Comment No. 3 (2016): Women and Girls with Disabilities, 35 Novemebr 2016, UN Doc. CRPD/C/GC/3, paras. 40 and 44. If ART is equally unavailable in a country, it would be a matter of non-compliance with the ICPD Programme of Action. There may also be a human rights argument to be made on its provision under the right to health. As for prohibiting ART altogether, that may run afoul of a range of human rights (see the further discussion regarding regional rights). HRC, CCPR General Comment No. 18:  Non-discrimination (Thirty-seventh session, 1989), UN Doc. HRI/ GEN/1/Rev.9 (Vol. I), para. I; CESCR, General Comment No. 20:  Non-discrimination in Economic, Social and Cultural Rights, (Art. 2(2) ICESCR), 2 July 2009, UN Doc. E/C.12/GC/20, para. 2. See also M. E. Ekberg, ‘Assisted Reproduction for Postmenopausal Women’ (2014) 17 Human Fertility 223. See e.g. CRPD Committee, Concluding Observations:  Spain, 19 October 2011, UN Doc. CRPD/C/ESP/CO/1, paras. 17–18 and CRPD Committee, Concluding Observations: Hungary, 16 May 2012, UN Doc. CRPD/C/HUN/Q/ 1, paras. 17–18. The CRPD Committee is in the process of developing a General Comment on Equality and NonDiscrimination (Art. 5) and its position may change.

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That said, under the CESCR and other UN treaty bodies’ more conventional understanding of discrimination, states may make seemingly discriminatory distinctions provided they relate to a legitimate interest, and for which they articulate sensical, proportional balanced reasons.30 Further inquiry would therefore have to be made as to the state’s reasons for drawing such distinctions and whether on balance such denial was proportional (in itself, or in relation to other rights infringements), and if there were less restrictive means that could be used to achieve the same objective.31 Plausible arguments could be made that would support or prohibit access to IVF to some or all citizens. 24.3.2 Regional Human Rights International human rights interpretive practice, for all the concern about fragmentation, presents ample opportunity for harmonisation; courts do look to and ‘borrow’ from other human rights mechanisms, which creates a transnational dialogue and interpretive convergence.32 Both the inter-American and European human rights courts have examined denial of access to IVF and their approaches may prove influential in the development of recognition of international human rights. The Inter-American Court of Human Rights (IACtHR), in Gretel Artavia Murillo v. Costa Rica (hereinafter Artavia), considered Costa Rica’s absolute prohibition of IVF. Costa Rica, basing its interpretation of Article 4.1 (right to life) of the American Convention on Human Rights,33 claimed it had an obligation to protect the embryo from the moment of conception, which the surplus creation of embryos through IVF contravened.34 The Inter-American Court found the IVF ban to interfere with a range of Convention rights and held that ‘the scope of the rights to private life, reproductive autonomy and to found a family, derived from Articles 11(2) and 17(2) of the Convention, extends to the right of everyone to benefit from scientific progress and its applications [as well as] the right to have access to the best health care services in assisted reproduction techniques’.35 Having found Costa Rica to have infringed on the enjoyment of many rights protected in the American Convention, it measured the need for and scope of the violation;36 in parsing the various balances, the Court determined that the complete ban on IVF was disproportionate and excessively interfered with a range of human rights. It ordered Costa Rica to re-establish the legality of IVF. As to how this decision might affect the recognition of a right to IVF as a matter of international human rights – or an aspect of these right(s) – there is much the decision leaves unsaid. It is silent on whether single women, men or same-sex couples should have access to IVF.37 30

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CESCR, General Comment No. 20, Non-discrimination in Economic, Social and Cultural Rights (Art. 2(2) ICESCR), 2 July 2009, UN Doc. E/C.12/GC/20, para. 13. UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, 28 September 1984, UN Doc. E/CN.4/1985/4. C. M. Buckley, A. Donald and P. Leach (eds.), Towards Convergence in International Human Rights Law: Approaches of Regional and International Systems (Leiden:  Brill, 2016); L.  Hennebel, ‘Is the Future of International Human Rights Law Transnational?’ (2010), available at: https://ssrn.com/abstract=1720409. American Convention on Human Rights, San José, 22 November 1969, in force 18 July 1978, OAS Treaty Series No. 36, 1144 UNTS 123. IACtHR, Gretel Artavia Murillo et  al. v.  Costa Rica (Preliminary Objections, Merits, Reparations and Costs), 28 November 2012, Ser. C, No. 257. Ibid., para. 150. F. Zegers-Hochschild, B. M. Dickens and S. Dughman Manzur, ‘Human Rights to In Vitro Fertilization’ (2013) 123 International Journal of Gynecology and Obstetrics 86. Pennings, Klitzman and Zegers-Hochschild, ‘International Regulation and Cross-Country Comparisons’.

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However, the Inter-American Court of Human Rights Advisory Opinion on same-sex marriage in Costa Rica, as well as its regulation related to non-discrimination on the basis of sexual orientation regarding health services, would likely apply to IVF.38 The Artavia case ruling extends to the states parties to the American Convention, none of which ban IVF, although eligibility requirements and financial costs/coverage vary.39 While not binding on other countries or transnational courts, the similarity in language of the interpreted rights, and a preference to avoid fragmentation, suggests that this ruling could have influence should an IVF ban arise in other jurisdictions. The European Court of Human Rights (ECtHR) likewise has not considered access to IVF under the right to health (as the European Convention on Human Rights40 does not have such an article.) To date, the IVF decisions, as well as those on gestational surrogacy, turn for the most part on the interpretation of Article 8 – the right to respect for private and family life. In the 2010 S.H. and Others v. Austria case,41 two heterosexual couples sued Austria for preventing them from conceiving genetically related children. After exhausting all national remedies, and a ruling on the merits in the couple’s favour by a panel of the ECtHR, the case was reheard. The Grand Chamber overturned the panel and found that Austria did not violate the right to private and family life of the applicants. It reasoned that Austria was better positioned and more accountably situated to balance the interests of those facing fertility problems against a range of concerns: eugenics, protection of economically vulnerable women, and prevention of potential disputes between genetic and birth mothers. As IVF was a matter ‘of a social and ethical nature on which there was not yet a consensus in the society and which had to take into account human dignity, the well-being of children thus conceived and the prevention of negative repercussions or potential misuse’, it accorded Austria a large margin of appreciation.42 This decision reflects the ambivalence of the ECtHR as to the status of rights related to family formation.43 At this point in time, under S.H. and Others, states parties to the European Convention may limit access to IVF to heterosexual couples within their own borders without violation of the right to family and private life. Nonetheless, laws and attitudes surrounding ART are rapidly changing and non-discrimination arguments are gaining traction, limiting the shelf life of S.H. and Others. Italy’s highest court, for example, removed its prohibition on thirdparty gamete procurement.44 A similar challenge at the ECtHR to France’s gamete provision restrictions was recently ruled inadmissible.45 38

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IACtHR, Gender Identity and Nondiscrimination against Same-Sex Couples. State Obligations in Relation to Change of Name, Gender Identity, and Rights Deriving from a Relationship between Same-Sex Couples, Advisory Opinion No. 24/17 of 24 November 2017, Ser. A, No. 24; Reforma Reglamento del Seguro de Salud de la Caja Costarricense de Seguro Social, Reglamento 8718 del 22 de mayo del 2014 (Reform of the Regulation of Health Insurance of the Costa Rican Social Security System, Regulation 8718 of 22 May 2014). M. Hevia and C. Herrera Vacaflor, ‘The Legal Status of In Vitro Fertilization in Latin America and the American Convention on Human Rights’ (2012) 36 Suffolk Transnational Law Review 51. European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, in force 3 September 1953, 213 UNTS 221. ECtHR (Grand Chamber), S.H. and Others v. Austria (Appl. no. 57813/00), judgment, 3 November 2011. One couple needed to procure sperm, the other an egg. Under Austrian law, procured sperm could be used for IVF and egg procurement was banned in all cases; IVF is only available if each intending parent provides her/his gametes. Ibid., paras. 64 (place of citation) and 73 (margin of appreciation). Because of the wide margin of appreciation granted to states by the ECtHR, dispositions of cases appear inconsistent. See L. Papadopoulou, ‘Is There a “Right to Reproduce” through MAR Techniques?’, in V. Kantsa, L. Papadopoulou and G. Zanini (eds.), (In)Fertile Citizens (Mytilene, Greece, (In)FERCIT, 2015), p. 39. Italian Constitutional Court (n. 162/2014). Charron et Merle-Montet v. France, Req. 22612/15, Decision, 16 January 2018, available at https://hudoc.echr.coe.int/ eng#{%22itemid%22:[%22001-180948%22]}.

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Forty-seven European states, Brexit notwithstanding, are subject to this court’s jurisdiction, and the sheer diversity of legal systems and religious traditions among these countries inflects law on access to all ARTs, IVF and surrogacy in particular.46 The ECtHR’s margin of appreciation doctrine grants great deference to practices which can easily be framed as impermissibly discriminatory. The ECtHR may well narrow this margin as a consensus evolves and venture to rule more substantively on the content of the right to family and private life as far as IVF is concerned. European states are being compelled by their own highest courts to review their bases for restricting access to ART, such as preventing eugenic selection of embryos or insisting on genetic relationships.47 Whether maintenance of the heterosexual, genetically related nuclear family will survive as a legitimate state interest seems unlikely as in so many other areas of family formation – same-sex marriage, adoption by same-sex couples and individuals– the laws of many nations have changed. This may eventually lead to a jurisprudence of rights recognition by attrition or perhaps by declamation.48 In the meantime, Europe’s human rights law lags behind by not acknowledging as discrimination what in other areas of family formation – marriage and adoption – many states already do. Is there a (new) human right to IVF? Insofar as IVF is viewed as infertility treatment, while the technology is new, the right is not. There is emergent jurisprudence to access IVF, grounded in the right to (reproductive) health (which includes autonomy claims) or as part of establishing family and private life. The nature of the right is more likely to be negative when it is viewed as part of family and private life (e.g. a state obligation to place no impediments to IVF access for individuals or couples); it is more likely to be positive when viewed as part of reproductive health services. Both grounds hold weight and how IVF rights are ultimately framed may depend on national constitutional culture.

24.4 Gestational Surrogacy 24.4.1 A Comparative Overview and the International Dimension Assuming ad arguendo there is a rights claim to IVF, the issue of a right to gestational surrogacy becomes salient, even pressing. Access to IVF is only the first step in infertility treatment for those individuals and couples who cannot carry a pregnancy. Gestational surrogacy may be the only path to parenthood for such people given the oft-times insuperable hurdles to adoption. In such cases is there, or ought there to be, a right to access gestational surrogacy as a component of reproductive rights? As an aside, recognising that numbers do not bear on human rights claims per se, it is useful to keep gestational surrogacy in perspective. Data indicate that only a small portion of births resulting from ART used gestational surrogacy.49 This contrasts with the anxiety voiced over its practice. These concerns – about human dignity, women’s equality and trafficking in children – deserve serious examination. However, human rights could never countenance coercing 46

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T. Glennon, ‘Legal Regulation of Family Creation through Gamete Donation: Access, Identity and Parentage’, in S. Golombok et al. (eds.), Regulating Reproductive Donation (Cambridge: Cambridge University Press, 2016), p. 60. See ECtHR, Costa and Pavan v. Italy (Appl. no. 54270/10), judgment, 28 August 2012, rejecting a blanket ban on preimplantation diagnosis of embryos for parents with cystic fibrosis; see also above, note 42. Y. Shany, ‘Toward a General Margin of Appreciation Doctrine in International Law?’ (2005) 16 European Journal of International Law 907. K. M. Perkins et al., ‘Trends and Outcomes of Gestational Surrogacy in the United States’ (2016) 106 Fertility and Sterility 435; see especially, UN Human Rights Council, Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, 15 January 2018, UN Doc. A/HRC/37/60.

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someone into being a surrogate.50 No matter how one might conceive of a human right to access gestational surrogacy, its recognition is not a harbinger of The Handmaid’s Tale’51 Currently, some states such as Ukraine, Georgia and Russia, and some states in the USA, are permissive, placing few, if any, restrictions on access to surrogacy, leaving it to the parties to agree to the terms in a contract.52 Market abuses (e.g. imperfect consent, baby-selling) under this approach are left to prosecutors and the judiciary to determine on a case-by-case basis. Other jurisdictions, for example France, Italy, Germany, the UK and Canada, prohibit all forms of surrogacy or only compensated surrogacy, characterising any exchange of money as exploitation and against public order (and/or morality). Packed into the notion of ‘morality’ is often concern to protect the heteronormative nuclear family, as evidenced by restrictions on heterologous IVF and gay adoption. Such prohibitions may be criminal or civil which render the contract unenforceable. This variation in legal approaches has spawned a ‘reproductive tourism’ industry. Driven either by cost or prohibitive legal regimes, intended parents will cross national borders to obtain surrogacy services to found their families. Relatively inexpensive travel, access to information and neo-liberalism have created a global market and have generated a discussion about the benefits and harms of globalisation. Matters such as exploitation of the surrogate (e.g. consent, compensation) or the well-being of the children, while no less present in any domestic context, assume exaggerated importance internationally, with additional considerations surrounding the nationality and citizenship of the foreign-born children.53 Cross-border surrogacy, more than any other aspect, has generated headlines and advocacy, as well as litigation; it has also instigated discussion regarding the establishment of international treaties to regulate its practice or abolish it altogether.54 24.4.2 International Human Rights As a formal matter, there is no explicit recognition in any international or regional human rights treaty or judicial ruling stating that anyone has a positive right to contract with, or provide services as, a surrogate. Neither is there an explicit prohibition. The few international human rights norms that have been articulated are non-binding and address gestational surrogacy from the perspective of the children who result from these arrangements. The Committee on the Rights of the Child in its concluding comments noted that insufficient regulation of commercial surrogacy raises the risk of the illegal sale of children.55 The UN Special Rapporteur on the sale of children, child prostitution and child pornography (whose reports carry less weight than 50 51 52

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Straehel, ‘Is There a Right to Surrogacy?’ M. Atwood, The Handmaid’s Tale (1985). Columbia Law School Sexuality & Gender Law Clinic, ‘Surrogacy law and policy in the U.S.: a national conversation informed by global lawmaking’ (2016) available at:  https://web.law.columbia.edu/sites/default/files/microsites/ gender- sexuality/files/ columbia_ sexuality_and_ gender_law_ clinic_ - _ surrogacy_ law_ and_ policy_ report_ - _ june_ 2016.pdf. I. G. Cohen, ‘Medical Tourism and the Creation of Life: A Study of Fertility Tourism’, in I. G. Cohen, Patients with Passports: Medical Tourism, Law, and Ethics (Oxford: Oxford University Press, 2014), p. 371. See K. S. Rotabi et al., ‘Regulating Commercial Global Surrogacy: The Best Interests of the Child’ (2017) 2 Journal of Human Rights Social Work 64; see also Permanent Bureau, Background Note for the Meeting of the Experts’ Group on the Parentage/Surrogacy Project, Hague Conference on International Private Law (2016). Committee on the Rights of the Child, Concluding Observations:  United States of America, 2 July 2013, UN Doc. CRC/C/OPSC/USA/CO/2; Concluding Observations:  Israel, 4 July 2013, UN Doc. CRC/C/ISF/CO/204, paras. 33–34; Concluding Observations:  India, 7 July 2014, UN Doc. CRC/C/OPSC/IND/CO/1; and Concluding Observations: Switzerland, 25 February 2015, UN Doc. CRC/C/CHE/CO/2–4, para. 46.

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concluding observations from the point of state practice) in her 2016 report to the UN Human Rights Council on illegal adoption echoed those same concerns. She noted the growth in international commercial surrogacy, the lack of international regulation and the potential for child rights violations. She went a step further and observed that ‘the practice often amounts to the sale of children and may lead to illegal adoption’.56 Her 2018 report came closer to labelling compensated gestational surrogacy as the sale of children.57 International customary law and treaties prohibit trafficking and the sale of children: ‘Any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration’ is the sale of children.58 International human rights mechanisms therefore invite state regulation of gestational surrogacy, particularly of compensated surrogacy practices.59 They have not taken the view that gestational surrogacy per se violates human rights. Had that been its intention, the Committee on the Rights of the Child would have been more direct in its language. Other UN treaty bodies have not spoken on the matter, although certain feminists and Catholics (increasingly in coalition) have demanded that the Committee on the Elimination of Discrimination against Women (CEDAW Committee) issue a General Recommendation condemning surrogacy as violating a cornucopia of human rights.60 The CEDAW Committee has not yet taken up this issue. 24.4.3 Regional Human Rights European institutions are the largest source of human rights norms, some binding and some not. Transnational legislative institutions such as the European Parliament (EP) and the Parliamentary Assembly of the Council of Europe (PACE) have issued non-binding recommendations. The EP condemned all forms of surrogacy as undermining ‘the human dignity of the woman since her body and its reproductive functions are used as a commodity’; the EP further labelled gestational surrogacy as ‘reproductive exploitation’ and stated that the use of ‘the human body for financial or other gain, particularly in the case of vulnerable women in developing countries, shall be prohibited and treated as a matter of urgency in human rights instruments’.61 PACE, by contrast, rejected resolutions on two recent occasions that would have prohibited or regulated surrogacy, including a proposal to cooperate with the Hague Conference on Private International Law.62 A February 2016 report from that Hague Conference suggested that state practice is too disparate to venture any collective action.63

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Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, 22 December 2016, UN Doc. A/HRC/34/555 14, para. 52. See above, note 47. Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 16 March 2001, UN Doc. A/RES/54/263. See above, note 47. Se non ora quando – Libere, Demande de Reccomandation du CEDAW contre la maternitè de substitution, 23 March 2017, available at: www.cheliberta.it/wp-content/uploads/2017/03/ReccCedaw_-Se-non-ora-quando-Libere-1.pdf. European Parliament, Annual Report on Human Rights and Democracy in the World 2014 and the European Union’s policy on the matter (2015/2229(INI)), European Parliament Resolution: all forms – Domestic/International; commercial or altruistic, ‘Rights of women and girls’, 30 November 2015, PE 567.654v03-00, A8-0344/2015, sub paragraph 114. Petra De Sutter (Belgium), Committee on Social Affairs, Health, and Sustainable Development, Draft Recommendation, Children’s rights related to surrogacy (11 October 2016). Hague Conference on Private International Law, General Affairs and Policy, Report of the February 2016 Meeting of the Experts’ Group on Parentage/Surrogacy; see also K. Trimmings and P. Beaumont, ‘International Surrogacy Arrangements: An Urgent Need for Legal Regulation at the International Level’ (2011) 7 Journal of Private International Law 627.

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Litigation before the ECtHR arising from cross-border surrogacy agreements has yielded a crop of binding norms from which we can ascertain the status of access to surrogacy as a human right.64 Parents who have gone abroad to evade their own country’s surrogacy prohibitions have been met, at times, with their state’s refusal to legally recognise the parent/child relationship, and the children as nationals or citizens. The parents could potentially face criminal sanctions (although none have been imposed so far.) In the cases before the ECtHR,65 states were directed to register the child and ensure his/her nationality and citizenship, despite national laws and public policy that prohibited and/or criminalised surrogacy agreements. Unlike the wide margin of appreciation conferred in the IVF cases, the ECtHR reduced its deference to states’ surrogacy laws because ‘an essential aspect of identity of individuals’ (filiation) was at stake.66 The ECtHR considered that the private life of children encompassed their rights to identity and to know their parents. These rights superseded any countervailing state interests  – provided that the Court accepted that the child ‘belonged’ to his/her parent(s). Establishing filiation and therefore children’s rights to ‘private life’ could potentially be based on several factors. What is dispositive, however, is shared DNA between parents and children. So long as there is a genetic affinity between the intended parent and child, the domestic legal status of gestational surrogacy is irrelevant. France and Italy both now on their own follow this ruling; Germany’s Constitutional Court ruled similarly in 2014 (provided there is genetic affinity).67 UK courts begrudgingly drew the same conclusion.68 From a certain perspective, this is logically consistent with family law in common and civil law countries, as parental rights often turn on DNA (as well as birth and marital presumptions). Yet there are other pathways to parenthood. Adoption, both domestic and international, legally constitutes a genetically unrelated family;69 de facto parental relationships – those based on deed – are also increasingly recognised by courts. And as discussed in the previous section, requirements that at least one parent provide a gamete for the embryo are being overturned as interfering with the human right to family and private life, although this trend is not unidirectional. Notwithstanding these legal paths to family formation among genetic strangers, human rights protections cut differently for non-genetically related children born through gestational surrogacy. Such was the result in the recent ECtHR Grand Chamber Case, Paradiso & Campenelli v. Italy (2017).70 Technically, the case did not involve Italy’s ban on surrogacy. Rather, the matter turned on whether removing a genetically unrelated child who had been allegedly adopted illegally from outside Italy  – against the objections of the parents  – was in breach of the Convention.71 Paradiso therefore stands for the proposition that when the parents and child(ren) share no genetic material – even if as a result of the surrogacy agency’s innocent mistake – a 64 65

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Neither the inter-American nor African human rights systems have addressed gestational surrogacy. ECtHR, Mennesson v. France (Appl. no. 65192/11), judgment, 26 June 2014; Labassee v. France (Appl. no. 65941/11), judgment, 26 June 2014; Foulon and Bouvet v. France (Appl. nos. 9063/14 and 10410/14), judgment, 21 July 2016; see also D. and Others v. Belgium (Appl. no. 29176/13), decision, 8 July 2014 (ruled inadmissible). ECtHR, Mennesson v. France, paras. 78–80. Case XII ZB 463/13, German Federal Court of Justice (Bundesgerichtshof – BGH), 10 December 2014. UK High Court Of Justice, Family Division, X & Y (Foreign Surrogacy), Case No. FD08P01466 [2008], EWHC 3030 (Fam). For a more searching inquiry into adoption as an analogy for surrogacy, see Trimmings and Beaumont, ‘International Surrogacy Arrangements’. ECtHR (Grand Chamber), Paradiso and Campanelli v. Italy (Appl. no. 25358/12), judgment, 24 January 2017. The aggrieved Italian parents were a couple who, circumventing Italian law, sought surrogacy services in Russia. The parents allege that the intended father’s sperm was sent to fertilise a procured egg; nothing in the record proves or disproves this. Something went awry, which was purportedly only discovered when the DNA of the child and intended father were tested.

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state need not recognise any filiation. Insofar as the ECtHR understands the right to family and private life (which may or may not be an analogue to the right to form a family), parents in such situations have little recourse against what they experience as disproportionate state interference with their family life. ‘[T]he Convention does not recognise a right to become a parent’, the majority opinion of the Grand Chamber explained; ‘public interests’ take precedence over the petitioners’ ‘desire to become parents’. It was legitimate to withdraw the child, because ‘agreeing to let the child stay with the applicants … would have been tantamount to legalising the situation created by them in breach of important rules of Italian law’.72 The ECtHR Grand Chamber found nothing disproportionate in classifying this child as an orphan, putting him up for foster care and adoption, and in this way enforcing its surrogacy ban. Of course, much in this and all such cases turns on the facts and their interpretation; establishing ‘family life’ has been notoriously subjective.73 Even considering the facts in Paradiso itself, the Grand Chamber reversed its prior panel decision finding Italy’s removal of an eight-month-old child from its family to be disproportionate. What Paradiso highlights is the human rights muddle that recognition of rights to family and private life in the face of prohibitions on surrogacy creates. More than DNA essentialism is at stake through the prohibition of surrogacy. As noted in the EP statement: prohibitions are meant to ensure women’s equality and dignity from a degrading, objectifying and stereotyping practice, as well as the dignity of children who were seemingly commissioned into existence.74 To a large extent these interests parallel those expressed during the ‘sex wars’ over prostitution and pornography75  – matters that are still unsettled and well grounded in human rights arguments on both sides. Arguably on the one hand, prohibiting surrogacy serves to promote symbolic interests such as equality of women (which surrogacy implicitly devalues by reducing a woman to her reproductive functioning), or human dignity (e.g. non-commodification of person/body parts). In addition, bans are meant to protect vulnerable women from predatory situations, infant children from being trafficked and the public from becoming callous. Paying a woman to hand over ‘her’ child does appear to be baby-selling. From these points of view, states must curtail gestational surrogacy, or even support its abolition.76 Conversely, it is not altogether clear that prohibitions have these symbolic or instrumental effects. A woman who agrees to provide gestational services pursuant to a bargained and agreedto contract does not ‘own’ the child her body’s work produces, any more than a carpenter ‘owns’ the furniture she creates with her hands for her clients. There are women who, for economic or idealistic reasons, find protective regulations themselves discriminatory and paternalistic.77 Furthermore, we do know that criminal prohibition drives practices underground, which makes all parties to these transactions more vulnerable to exploitation and crime.78 In other words, on 72 73 74

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ECtHR, Paradiso and Campanelli v. Italy, para. 215. Ibid., paras. 140–157. S. Allen, ‘Commercial Surrogate and Child: Ethical Issues, Regulatory Approaches, and Suggestions for Change’ (2014), available at: https://ssrn.com/abstract=2431142. S. L. Ainsworth, ‘Bearing Children, Bearing Risks: Feminist Leadership for Progressive Regulation of Compensated Surrogacy in the United States’ (2014) 89 Washington Law Review 1077; for a strong feminist statement against surrogacy, see D. Danna, Contract Children: Question Surrogacy (Stocccarda: Ibidem, 2015). D. M. Smolin, ‘Surrogacy as the Sale of Children: Applying Lessons Learned from Adoption to the Regulation of the Surrogacy Industry’s Global Marketing of Children’ (2016) 43 Pepperdine Law Review 265. For the perspective of Indian surrogates, see A. Pande, ‘Not an ‘Angel’, Not a ‘Whore’: Surrogates as ‘Dirty’ Workers in India’ 2009 16 Indian Journal of Gender Studies 141; B. Kessler, ‘Recruiting Wombs: Surrogates as the New Security Moms’ (2009) 37 Women’s Studies Quarterly 167. See also generally, S. Wilkinson, ‘Exploitation in International Paid Surrogacy Arrangements’ (2016) 33 Journal of Applied Philosophy 125. See Amnesty International, Policy on State Obligations to Respect, Protect and Fulfil the Human Rights of Sex Workers, 26 May 2016, Index number: POL 30/4062/2016.

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balance, abolition may cause more or disproportionate harm that a state might better address through regulation and oversight. Should a state seek to deter intended parents from crossborder arrangements through criminal prosecution, the countervailing interest of the children in their family life may render this, too, disproportionate; a more tailored target might be surrogacy agencies, notwithstanding potential hurdles in the extraterritorial reach of the law.79 As for the dignity and value of children born through commercial surrogacy arrangements, one could argue that they come into being solely because of intention and are desired in a way that children born through unintended pregnancies are not. The mere fact that commerce is involved need not sully family relationships and its transactional nature need not transform children into objects. Legal adoptions, both domestic and international, for example, resemble marketplaces and involve monetary transactions that can include considerable donations.80 Any unseemliness could be mitigated through regulation rather than blanket prohibition, perhaps on the model of already existing international adoption laws.81 In sum, while worries about exploitation, crime and human worth call for human rights responses, criminal prohibitions are disproportionate when measured against procreative rights. Insofar as gestational surrogacy is a component of reproductive rights, the more apt question is: what regulations may a state legitimately impose, in terms of access to surrogacy, and still meet its obligations? The answer remains a matter of advocacy and analogy. Presumptively, individual states may restrict access to promote and protect legitimate interests, so long as a state does not engage in impermissible discrimination, or fail to properly balance the rights involved, or act in a disproportionate way. Much could be borrowed from the IVF context. If gestational surrogacy is classified as an element of infertility treatment (per the WHO), there would be no reasonable and/or justifiable grounds to prohibit absolutely or to criminalise gestational surrogacy. That is not to say a state may not regulate the practice to ensure that neither the surrogate nor the intended parents are exploited, that women’s equal worth and dignity are preserved, and that no criminal activity (e.g. baby-selling) occurs. In fact, their human rights obligations call for regulation.82 Some countries have come to terms with human rights considerations by only permitting an altruistic practice which in theory vitiates commodification, trafficking and exploitation. Indeed, some feminist commentators who wish to abolish surrogacy believe a truly altruistic gift may overcome patriarchy.83 In practice, altruism may fall short as a remedy.84 Other possibilities are establishing a state agency (as, e.g., in Israel) that can monitor the market and ensure fair prices for gamete provision and surrogacy services, inquire into the motivation of intended parents, and so on.85 This may not be the ideal solution, but it is a start at finding a less restrictive means of meeting state interests while recognising reproductive rights. 79 80

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Cohen, ‘Medical Tourism and the Creation of Life’. M. B. Goodwin, ‘Baby Markets’, in M. B. Goodwin (ed.), Baby Markets: Money and the New Politics of Creating Families (Cambridge: Cambridge University Press, 2010), p. 2. See Trimmings and Beaumont, ‘International Surrogacy Arrangements’; see also Y. Ergas, ‘Thinking “Through” Human Rights:  The Need for a Human Rights Perspective with Respect to the Regulation of Cross-Border Reproductive Surrogacy’, in K. Trimmings and P. Beaumont (eds.), International Surrogacy Arrangements:  Legal Regulation at the International Level (Oxford: Hart Publishing, 2013), p. 427. Y. Ergas, ‘Babies Without Borders: Human Rights, Human Dignity, and the Regulation of International Commercial Surrogacy’ (2013) 27 Emory International Law Review 117. Danna, Contract Children: Question Surrogacy. Since reasonable expenses are allowed, ‘altruism’ is difficult to monitor and might not stem reproductive tourism. F. W. Twine, ‘Egypt and Israel: Religious Law and Regulatory Regimes’ in F. W. Twine, Outsourcing the Womb: Race, Class and Gestational Surrogacy in a Global Market (New York: Routledge, 2015), p. 46; for a free market approach to regulation, see K. D. Krawiec, ‘Altruism and Intermediation in the Market for Babies’ (2009) 66 Washington and Lee Law Review 203.

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24.5 Conclusion Is there a ‘new’ human right to IVF and/or gestational surrogacy? Despite the plain meaning of reproductive rights as the ‘right to reproduce’, courts and commentators have scoffed at the notion that there is any human right to a child, let alone a state-provided one. Rather, it is the development of new technologies, such as IVF, in the context of egalitarian norms that has created the novelty for human rights application. When IVF and/or gestational surrogacy are framed as health services, access to them is already part of the recognised right to the highest standard of health.86 Infertility, a recognised but long-overlooked reproductive rights and health issue, is finally on the global public health and human rights agenda.87 Since authoritative institutions define infertility as a disability, there may be no justifiable reason to deny ART to any adult with the inability to conceive and bear a child, including for non-medical reasons. It is likely just a matter of time before infertility ‘disability’ becomes de-medicalised and redefined in social and structural terms, thereby encompassing individuals whose families would not necessarily conform to the nuclear, heterosexual, genetically related model. As previously reviewed, states and human rights systems which do not recognise explicit rights to health frame access to ART on other grounds, usually related to founding a family and private life. The arguments for inclusion of ART as part of this bundle of rights depend to a large extent on regional or national social norms and their evolution (or not). States that restrict or deny access to IVF and/or gestational surrogacy do so to protect the stability of the ‘family’ (e.g. the heterosexual nuclear family). Insofar as family preservation is concerned, the notion that human rights dictate only one ‘traditional’ family form is without doctrinal support. States are required to respect, protect and promote the rights of all individuals and couples of any sexual orientation of access to ART, without discrimination. That said, countervailing obligations to protect the equality and dignity of women and/or to ensure the best interests of the child might outweigh, or at least temper, the scope of access to ART as part of the rights to family and private life. Where emotions run deep, a commitment to human rights methodologies, doctrine and outcomes is indispensable. ART is fundamentally an emotional issue. It unsettles the bedrock of parental biological filiation with their children in so many ways, both bad and good. ART disassociates the genetic foundation and the embodiment of pregnancy from its legal consequences:  egg donors, sperm providers and gestational surrogate women are, and were never legally intended to be, the resulting children’s legal parents. Furthermore, ART depends principally on the fruits of female material and labour  – eggs, gestation, live-born infants  – and women’s willingness to alienate them – as a gift but often for a fee. Families thus formed are the product of calculated marketplace transactions, rather than reflections and results of intimate exchange. And there lies the crux of the matter. ART exposes the politics and cultural work put into maintaining the dichotomy between relationships of love and money. There is copious social theory and feminist literature decrying the commodification of nurturance; equally vibrant is the literature that exposes the politics embedded in carving caring relations out from contractual ones as ‘family law exceptionalism’.88 86 87

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See above, note 15. M. C. Inhorn and P. Patrizio, ‘Infertility around the Globe: New Thinking on Gender, Reproductive Technologies and Global Movements in the 21st Century’ (2015) 21 Human Reproduction Update 411; C. O’Connell, ‘Women’s Reproductive Rights and Reparations: Lessons from the Inter-American System of Human Rights’ (2016), available at: https://ssrn.com/abstract=2854922. See J. W. Scott, ‘Gender: A Useful Category of Historical Analysis’ (1986) 91 The American Historical Review 1053; J. Halley and K. Rittich, ‘Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies

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International human rights, as the last global discourse standing,89 has of late been enlisted to shore up or redraw the line separating that which cannot be bought and sold from that which can. Yet as previously noted, doctrinal human rights arguments bolster both sides of this ART debate-line. To recognise that human rights are indeterminate is not, however, to dodge the question about whether there is a human right to access ART or not. It is to acknowledge how freighted with cultural and social values human rights are. It is to stress that the added value of human rights is process. It is through human rights-balancing and proportionality processes that access to IVF, and in round-about ways permission to contract with gestational surrogates, have been recognised as aspects of agreed-to human rights. It will be through such processes that rights surrounding ART access may expand or contract in scope. However well-textually grounded rights related to reproduction and family formation are, much remains in flux.

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of Family Law Exceptionalism’ (2010) 58 The American Journal of Comparative Law 753–775; M. Cooper, Family Values: Between Neoliberalism and the New Social Conservatism (Cambridge, MA: MIT Press, 2017). S. Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Harvard University Press, 2010).

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25 Birthing New Human Rights Reflections around a Hypothetical Human Right of Access to Gestational Surrogacy Eva Brems

It is clear from Roseman’s excellent chapter1 that there is not currently an international human right for aspiring parents who cannot otherwise reproduce to access gestational surrogacy. While claims for such a right exist and discussions are taking place about its contours, it would seem that currently we cannot even say that such a right is emerging under international law. In fact, gestational surrogacy is typically considered as an actual or potential violation of human rights. Yet Roseman sketches a convincing scenario in which the de-medicalisation of infertility, and the push for ever fuller inclusion of (inter alia) persons with disabilities and same-sex couples would lead to a new view in which banning gestational surrogacy would be untenable under international human rights standards, and in which states might even have a positive obligation to facilitate access to it. This well-argued hypothesis allows us to address a number of questions about the genesis of ‘new’ human rights. First, there is the question whether an issue can be considered under international law as the object of a human right if it is already being considered as a human rights violation. Next, this comment will look into the question when or why a certain matter is considered to be a human right in its own right, instead of being an application or interpretation of a pre-existing right. This is followed by an analysis of the classic discussion about ‘new’ human rights, i.e. the question regarding the criteria against which an aspiring new human right is to be tested. The final question that is addressed concerns the impact of scientific progress on the genesis of human rights.

25.1 Rights that Coincide with Violations At first sight it might seem contradictory that an issue might be considered under international human rights law as the object of a new human right if the same issue is already being considered as a human rights violation. If that is not possible or acceptable, the claim to human rights status of a potential human right of access to gestational surrogacy is doomed to fail. Indeed, as shown in Roseman’s chapter, there has been prior framing, by scholars as well as human rights bodies, of gestational surrogacy as an actual or potential human rights violation. Yet upon closer examination, it should not come as a surprise that situations occur in which the same issue is considered as the object of a human right and as a human rights violation. 1

M. Roseman, in this volume.

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There are at least three explanations for such a phenomenon, all of which relate to the nature of human rights and/or the characteristics of the international system of human rights protection. All three have some relevance for the case at hand. First, there is the fragmentation of international human rights law and of its monitoring bodies, leading to different interpretations of similar provisions, as well as to the different perspectives and priorities of different human rights bodies.2 In such a context, it is not surprising that a contested issue that generates benefits for certain (categories of) individuals while posing risks for others may come before one human rights monitoring body as a potential threat to a human right, while being claimed by another human rights body as a right in itself. This is related to the second important factor, which is the frequent occurrence of situations of competing or conflicting human rights – that is to say, situations in which the realisation of the right of one person infringes a right of another person. In the discussion on gestational surrogacy, the exercise of the hypothetical right of aspiring parents to access to gestational surrogacy would in some situations conflict with rights of the gestational surrogate (right to protection against exploitation) and/or of the child (right to protection against human trafficking). In many cases – arguably including this one – it is possible to formulate or interpret rights in such a manner that the prima facie conflict does not result in an actual conflict. In other situations compromise solutions are found, or alternatively one right is given priority over the other in a specific situation.3 The third and final explanation lies in the evolving nature of international human rights standards. Human rights standards evolve, among other things, as a result of changing views, which in turn are often the result of the struggles for inclusion of formerly marginalised groups. Such ‘cultural change’ is as much a gradual process in the human rights world as elsewhere. While the process of change is going on, contradictory human rights views may temporarily co-exist.

25.2 New Wine or New Bottles? When human rights are mobilised in a new field, this is not necessarily done by claiming a new right. Another option is to try to bring the matter under a pre-existing right by proposing a novel interpretation of the latter. Why formulate some issues as human rights in their own right and others as aspects or applications of existing rights? The ‘right of access to gestational surrogacy’ would be a new human right of a very specific nature that would be claimed and exercised by a limited number of individuals who are confronted with specific types of infertility challenges. Alternatively, the matter could be brought under a more general (emerging/partly recognised) ‘right to reproduce’, or under solidly established human rights such as the right to found a family, the right to private life (incorporating autonomy) or the right to health.

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E.g. E. Brems, ‘Legal Pluralism as a Human Right and/or as a Human Rights Violation’, in G. Corradi, E. Brems and M. Goodale (eds.), Human Rights Encounter Legal Pluralism: Normative and Empirical Approaches (Oxford and Portland: Hart Publishing, 2017), p. 23, explains how the recognition of non-state (tradition-based) legal orders is mandated as a matter of human rights in regard to indigenous peoples, yet considered a human rights violation by the European Court of Human Rights when it concerns religious (Islamic) law. On fragmentation in international human rights law in general, see E. Brems, ‘Should Pluriform Human Rights Become One? Exploring the Benefits of Human Rights Integration’ 2014 European Journal of Human Rights 447. See, among others, Stijn Smet, Resolving Conflicts between Human Rights:  The Judge’s Dilemma (Oxford: Routledge, 2016).

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25.2.1 Formulation or Interpretation: Strategic Considerations When sexual and reproductive rights (SRR) came to the fore (at the Cairo World Conference in 1994), a strategic choice was made to not claim that these are new rights, but rather to proclaim that they are/should be read into existing human rights – e.g. access to reproductive health care under the right to health, reproductive autonomy under general autonomy rights, etc. SRR were framed as a new layer to existing rights, or a new lens through which to look at existing rights. This has worked quite well across the UN and regional human rights protection systems.4 The big advantage of such an approach is that it bypasses the need for treaty negotiations. Yet the drawback of this approach is that the lack of explicit provisions anchoring a certain acquis keeps the door open to constant contestation and does not protect against retrogression. As highlighted in Roseman’s chapter, SRR have become a battlefield on which opposing world-views clash. This context creates a stalemate:  given the contentious context, access to gestational surrogacy would have to be formulated explicitly as a human right in order to guarantee its protection. Yet the same context also makes it extremely difficult – if not impossible – to gather sufficient international support for the adoption of such a text, let alone its ratification by a substantial number of states. 25.2.2 General or Specific Rights: Means towards an End and the Issue of State Discretion in Implementation Access to gestational surrogacy is not an end in itself, but a means towards the end of reproduction/founding a family. That in itself would seem to disqualify it as an autonomous human right. Yet it is quite common in human rights treaties to develop a right into very specific sub-rights and/or state obligations.5 This implies the assessment of the drafters that certain means are essential to a particular end. For that reason they cannot be optional, but should mandatorily be employed. Such detailed provisions thus reduce state discretion in the choice of means to implement the main human right. In the case at hand, the main impact of a specific provision on access to gestational surrogacy appears to be on adoption as an alternative strategy to implement the right to found a family. Assuming that the interest that is sought to be protected through access to gestational surrogacy (i.e. the underlying main human right) is ‘founding a family, either alone or with the partner of one’s choice’, a state that is left a choice of means to realise that right could opt for an alternative path in which gestational surrogacy is banned or severely limited, but access to adoption is strongly facilitated. Why would one choose to close that route? With respect to couples who contribute the gametes of one or both of them, this choice would seem to be based on particular value being attached to the fact that the child would be genetically related to one (or occasionally both) of its legal/de facto parents. The protected interest is then more properly formulated as ‘genetic reproduction’ for the contributor of gametes, and for the non-contributing partner as ‘founding a family with the partner of one’s choice and a child that is genetically related to the partner’. 4

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See Centre for Reproductive Rights, ‘Breaking Ground:  Treaty Monitoring Bodies on Reproductive Rights’ (New York, 2015), p. 23; for the European Court of Human Rights, see the factsheet ‘Reproductive Rights’, available at www.echr.coe.int. The most far-reaching examples are found in thematic treaties that develop a single human right in great detail. At the UN level, these include in particular the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, the 1984 Convention Against Torture and Other Inhuman or Degrading Treatment or Punishment, and the 2006 International Convention for the Protection of All Persons from Enforced Disappearance.

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With respect to couples in which neither partner contributes gametes, it is hard to think of a good reason why adoption would not be a valid alternative – provided of course that access to it is real.

25.3 Criteria for Human Rights Are there any criteria against which a proposed new human right has to be tested? This is the million-dollar question. There are no formal limits to what can be proclaimed as a human right. Yet it is widely understood that human rights should protect interests that are of great importance for human beings (threshold criterion) and that are universally valid (universality criterion). 25.3.1 Gestational Surrogacy and the Threshold Criterion Few will contest that the interest of founding a family and the interest of genetic reproduction meet the importance threshold. Yet a hypothetical right to gestational surrogacy is vulnerable to challenges of not meeting the ‘importance’ threshold when the rights holder is an individual who will not contribute any gametes to the reproductive process. The interest is in that case reduced to an autonomy interest regarding the choice of means by which to found a family. The choice of gestational surrogacy may have advantages such as control over the choice of the birth mother of the child and the ability to follow up on the child during the pregnancy. For an individual whose partner contributes genetic material, there is an additional – and arguably weightier – interest in founding a family in which the child is genetically related to at least one of the parents. Whether these preferences/interests carry sufficient weight to be labelled ‘human rights’ can be the subject of discussion. Yet regarding an individual who contributes genetic material, it is much harder to mount a challenge under the threshold criterion, as in this case the issue of genetic reproduction is at stake. 25.3.2 Gestational Surrogacy and the Universality Criterion A classical universality challenge argues that a certain claim cannot be a human right because it is strongly anchored in one culture and contradicts fundamental values of another culture. Typically, it takes the shape of a ‘West versus the rest’ argument, accompanied with accusations of Western imperialism or neocolonialism. Such an argument does not seem very relevant in the case at hand, given the highly controversial nature of gestational surrogacy within the ‘West’, with some Western states banning it and others allowing it.6 The pattern in which aspiring parents from rich Western states resort to the services of poor gestational surrogates in the global South or East could in principle give rise to a strong (but not directly culture-based) challenge of Western imperialism. Yet in practice, states such as India, Ukraine, Georgia and Russia choose to permit surrogacy. The contemporary version of the universality challenge or the ‘culture war’ over human rights is one that increasingly manifests itself within the West. It concerns challenges based on ‘Christian’ and/or ‘traditional’ values against the expansion of human rights in the areas of sexual and reproductive rights, sexual orientation and identity, and bio-ethics. These issues cause divisions among states within the same region, as well as within states. This type of universality 6

Roseman, in this volume, p. 319.

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challenge – arguing that the promotion of the hypothetical new right is a type of value imperialism and that it shocks important values of some (or many) people – is highly relevant for the case at hand. In political terms and in the real world, this is the argument that may stand in the way of the emergence of this hypothetical new right. Yet from a theoretical and principled angle, looking at the history and dynamic of international human rights, I submit that this should not be an obstacle. In fact, it is a characteristic feature of a significant body of human rights law that it aims to change – not only rules and public and private actions, but also people’s minds and values. This is part of the agenda of realising what I have termed ‘emancipation rights’, i.e. the rights of members of groups that are or have been structurally marginalised.7 This ‘cultural change’ agenda is explicitly included in treaty provisions concerning women’s rights and persons with disabilities, and in the leading soft law on LGBTIQ rights.8 Access to gestational surrogacy is in most cases a matter of emancipation rights. To the extent that it enables infertile individuals and their partners to build a family, it enables the full participation of persons with disabilities in an important sphere of life. I agree with Roseman that the ‘reasonable accommodation’ philosophy is highly relevant in this context. To the extent that it allows all-male couples access to genetic reproduction, access to gestational surrogacy is a matter of full inclusion of LGB individuals and same-sex couples in society. When it comes to individuals who are infertile from a medical perspective, disability rights apply. In the sphere of disability rights, it is common for reasonable accommodation to take the form of assistance by a third person – in this case, this model is simply extended to the sphere of reproduction.9 In LGB rights, this is a matter of substantive equality. While a ‘difference’ perspective might claim that infertility is an inherent feature of all-male couples – and promote the inclusion of childless families – the substantive equality perspective urges us to rethink familiar notions. In this case, the fact that genetic reproduction requires a womb does not lead to the conclusion that wombless couples cannot reproduce, but rather to a rethinking of the relationship between legal/de facto parenthood, genetic parenthood (contribution of gametes) and biological motherhood (via pregnancy and birth). Access to a (willingly co-operating) third person’s womb thus becomes a strategy for inclusion and hence for the realisation of emancipation rights. The fact that access to gestational surrogacy is a matter of emancipation rights implies that cultural resistance does not threaten the legitimacy of the hypothetical new right. This is because emancipation rights are inherently counter-cultural. Thus, cultural resistance is normal, in the sense that this is one of the expected challenges on the road towards rights realisation, and that part of what is expected of states under their human rights obligations with regard to emancipation rights is to overcome cultural resistance, which is done, among other things, by means of education and awareness-raising.

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E. Brems, ‘Lessons for Children’s Rights from Women’s Rights? Emancipation Rights as a Distinct Category of Human Rights’, in E. Brems, E. Desmet and W. Vandenhole (eds.), Children’s Rights Law in the Global Human Rights Landscape: Isolation, Inspiration, Integration? (Oxford: Routledge, 2017). See Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), New  York, 18 December 1979, in force 3 September 1981, 1249 UNTS 13, Art. 5; Convention on the Rights of Persons with Disabilities (CRPD), New York, 13 December 2006, in force 3 May 2008, 2515 UNTS 3, Art. 8(1)(b); Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (Yogyakarta Principles), 23 March 2007, available at www.yogyakartaprinciples.org, Principle 2(f). Granted, pregnancy and birth are a very heavy burden; yet some other types of assistance to persons with disabilities are also quite heavy burdens (e.g. living in with a patient who needs constant or near-constant care).

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25.4 The Impact of Scientific Progress How does scientific progress impact the genesis of human rights? It is possible that a new right of access to gestational surrogacy will develop, possibly in the wake of a dynamic as sketched by Roseman. If this is the case, however, it is likely that a substantial amount of time will be needed for such a right to become solidly established and widely accepted. In the meantime, medical science and technology are likely to develop further. In some cases, human rights challenges that are brought about by scientific progress are, in a later stage, solved by further scientific progress. An example is the scenario of the Evans case before the European Court of Human Rights (ECtHR), in which a couple, confronted with the medical need to remove the woman’s ovaries, had chosen to preserve their reproductive capacity by freezing embryos. After the couple split up, a real human rights dilemma arose when the man wished to destroy the embryos and the woman objected.10 Today, a similar issue is not likely to arise as a woman in Ms Evans’ position would most likely opt for the preservation of unfertilised eggs, a process that was not available at the time of the Evans case. Could a similar scenario develop with regard to gestational surrogacy? In the long term, it is not excluded that scientific progress may open up radically different reproductive scenarios, such as cloning. In that scenario, an individual’s reproductive capability would no longer depend on any genetic contribution and/or bodily co-operation by another individual; on the other hand, the new option would depend on the availability and accessibility of high-tech medical infrastructure. In the medium term, it is thinkable that the development of artificial wombs may eliminate the need for a human gestational surrogate in situations in which these are resorted to today.11 When the surrogacy is artificial rather than human, the issue of access to gestational surrogacy becomes extremely similar to that of access to IVF. Whereas a human surrogate is a bearer of human rights that risk being violated in the course of the surrogacy procedure, an artificial surrogate is a piece of medical equipment very similar to an incubator for premature babies. It is to ectogenic pregnancy what the Petri dish is to IVF. Such a development would dramatically change the human rights outlook on gestational surrogacy. Some of the strongest arguments that are mobilised in support of bans on gestational surrogacy concern the risk of violating the human rights of surrogate women. In addition to the risk of exploitation of these women, there is also (in situations of conflict between surrogates and aspiring parents) the risk of violating their right to reproductive autonomy (self-determination) as well as their right to family life with the babies they bear. With the disappearance of the human surrogate, the problem of conflicting human rights with respect to her rights disappears, as well as with respect to the rights of the child. Indeed, neither the concern about human trafficking (treating children as merchandise), nor the concern about children’s rights to know and have contact with their biological birth mother, is relevant when the surrogate is artificial. Any remaining objections to gestational surrogacy would then be based on vague notions of morality and protecting certain visions of the family, as Roseman describes. Given the absence of conflicting human rights, the ECtHR would not necessarily apply the line of reasoning it uses in S.H. and Others v. Austria12 to allow restrictions on IVF (banning procured gametes); it might disallow states from banning access to artificial surrogacy. I agree with Roseman that it is 10 11

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ECtHR, Evans v. the United Kingdom (Appl. no. 6339/05), judgment, 10 April 2007. In April 2017 a US-based team announced that they had successfully kept premature lambs alive for weeks in an artificial womb: www.theguardian.com/commentisfree/2017/may/01/artificial-womb-gender-family-equality-lamb. ECtHR, S.H. and Others v. Austria (Appl. no. 57813/00), judgment, 3 November 2011.

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unlikely that ‘maintenance of the heterosexual, genetically related, nuclear family will survive as a legitimate state interest’ that may be mobilised as a restriction ground under international human rights law.13 Consequently, I predict that the appearance of artificial wombs will result in the solidification of a human right of access to (artificial) gestational surrogacy, at least for those for whom it is the only option to genetically reproduce, either alone or with the partner of their choice.

13

Roseman, in this volume, p. 318.

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26 The Relevance of Human Rights for Dealing with the Challenges Posed by Genetics Roberto Andorno

26.1 Introduction Human rights have an internal dynamism which leads them to cover all new areas in which the most fundamental human goods are at risk. In this regard, human rights have been metaphorically compared to ‘an overflowing river that floods down across the valley, making the fields ever more fertile’.1 One area in which human rights have recently shown their ‘fertilising’ force is genetics, particularly a number of issues relating to genetic testing and the increasing access to personal genetic information. My baseline assumption in this chapter is that the recourse to human rights principles to address dilemmas arising from the collection, storage and use of personal genetic data is justified. Like other scientific and technological developments, genetic advances are profoundly ambivalent. They have an extraordinary potential to contribute to the diagnosis, prevention and treatment of a large number of diseases. However, they also create various challenging ethical and policy issues, particularly with regard to confidentiality of personal genetic information, informed consent to the use of the collected biological samples and the derived genetic data, and the risk of generating new forms of discrimination and eugenic practices – to mention only the most notable examples. More concretely, among the new questions that emerge in this area are: under what conditions should personal genetic information be obtained, stored and disclosed? What measures are necessary to protect the confidentiality of such data? How can their use for discriminatory purposes be prevented? Do people have a right not to know their predispositions to genetically related diseases? After some brief introductory reflections on the so-called ‘inflation’ of human rights (Section 26.2), this chapter presents the emergence of genetic rights since the 1990s, both in international law (Section 26.3) and in national law (Section 26.4), and claims that there are good reasons for recognising specific human rights in the field of genetics, either by extending pre-existing rights or by recognising entirely new rights (Section 26.5). On the other hand, it also argues that human rights are unable to cope with biotechnological developments such as reproductive cloning and germline modifications that jeopardise not existing individuals, but future human beings and humankind as such (Section 26.6).

1

A. Papisca, ‘L’internazionalizzazione dei diritti umani:  Verso un diritto panumano’, in C. Cardia (ed.), Anno Duemila: Primordi della storia mondiale, (Milan: Giuffré, 1999), p. 139 (my translation).

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26.2 A Preliminary Remark: The Objection of ‘Rights Inflation’ Before focusing on ‘genetic rights’, a preliminary remark ought to be made. It concerns the objection that the recognition of new rights is to be avoided because it leads to a ‘rights inflation’, which is the objectionable tendency to label everything that is morally desirable as a ‘human right’. The unjustified proliferation of new rights is problematic because it spreads scepticism about all human rights, as if they all were merely wishful thinking or purely rhetorical claims. Rights inflation risks diluting the core idea of human rights and distracting from the central goal of human rights instruments, which is to protect a set of truly fundamental human interests, and not everything that would be desirable in an ideal world. In this regard it has been pointed out that ‘unbridled proliferation [of human rights] damages the very idea of international human rights by abandoning the notion of extraordinarily high priority norms in favour of an everexpanding list of protected interests’.2 Similarly, it has been argued that ‘attempts to address all social problems from a human rights perspective may, ironically, undermine their legitimacy’.3 Moreover, it is regarded as ‘a mistake to try to squeeze all socially desirable progress into the human rights framework’.4 The crucial point here is that human rights are not just one category of rights among others (for instance, contractual rights, i.e. the rights that we have because of the contracts we have signed). Human rights are the highest and most precious prerogatives an individual can be entitled to, because they directly relate to people’s status as persons, or, in other words, because they ‘derive’ from human dignity.5 The notion of human dignity has the potential to help in identifying the claims that deserve to be recognised as human rights. After all, human rights are nothing but the concrete norms that are needed to flesh out in society the principle of human dignity from which they derive. According to international law, human dignity is the ultimate source of all rights, and not a kind of super-right or a collective term to refer to rights. The notion of human dignity attempts to respond to the question ‘why do human beings have rights?’ And the answer is: they have rights precisely because they possess intrinsic worth. Without the idea of inherent dignity as a background, the notion of human rights (i.e. rights that people are entitled to simply because of their human condition) would not make too much sense. Human rights are also inextricably linked to our status as ‘persons’. In fact, the term ‘person’ is not merely descriptive or generic (like, for instance, ‘mammal’ or ‘omnivore’) but normative, a nomen dignitatis.6 Therefore, it can be said that the provision in the Universal Declaration of Human Rights (UDHR)7 according to which ‘everyone has the right to recognition everywhere as a person before the law’ (Art. 6)  is no more than a restatement of the concept of human dignity. In other words, being recognised as a ‘person’ is equivalent to being recognised as an entity with intrinsic worth and, as a consequence, as a rights holder. My claim here is that the aim of human rights is ultimately to guarantee our recognition as ‘persons’ and, therefore, the 2 3 4 5

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A. Buchanan, The Heart of Human Rights (New York: Oxford University Press, 2013), p. 286. H. Hannum, ‘Reinvigorating Human Rights for the Twenty-First Century’ (2016) 16 Human Rights Law Review 409. Ibid., p. 438. ‘Recognizing that these rights derive from the inherent dignity of the human person’ (see the Preambles of both the International Covenants on Civil and Political, and on Economic, Social and Cultural Rights, 1966) (emphasis added). R. Spaemann, Personen:  Versuche über den Unterschied zwischen ‘etwas’ und ‘jemand’ (Stuttgart:  Klett-Cotta, 1996), p. 13. UNGA, Resolution 217A on Universal Declaration of Human Rights, 10 December 1948, UN Doc. A/Res/217 (III) (A).

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protection of all those basic human goods or interests that are necessary for the normal development of our personhood in society. The human rights framework does not seek to satisfy all possible aspirations and wishes that people might have in a perfect world. Rather, human rights embody the claims to the conditions that are crucial for guaranteeing respect for our dignity and our flourishing as ‘persons’. If human rights derive from human dignity, it is not surprising that they are regarded by international law as inherent rights, that is as entitlements that are inseparable from the human condition. For the same reason, human rights are meant to be universal, in the sense that they are equally possessed by all human beings, regardless of whether those rights have received legal recognition by all countries everywhere. Of course, the practical efficacy of human rights is significantly facilitated by their legal recognition by individual states. However, the ultimate validity of human rights is thought of as independent from such recognition.8 Understandably, this powerful doctrine can only operate effectively if such basic prerogatives concern the most important conditions that are necessary for leading a minimally good life and, therefore, having the opportunity to flourish as a ‘person’. This is to say that human rights should be regarded as the objective, indispensable basis for the fair functioning of society and the development of our personhood, and not as an arbitrary invention of law-makers, as if the state had the power to add new rights to the existing ones just by a kind of magic. It is also important to point out that the conditions for a minimally decent life are not static, but dynamic. New socio-economic factors and technological developments may create new threats to basic human goods and interests, and require the expansion of existing rights, or even the creation of new rights, in order to effectively preserve respect for human dignity. In line with this argument, Norberto Bobbio claims that the need for a new generation of human rights ‘arise[s] from the danger posed to life, liberty and security by the growth in technological progress’9. As examples of such new rights, he mentions those relating to new threats to privacy and to our genetic integrity. He continues that: It does not take much imagination to realize that development of technology, the transformation of social and economic conditions, widening knowledge and the intensification of the means of communication will produce such changes in the organization of human life and social relations as to engender favourable conditions for the creation of new needs and therefore demands for freedoms and powers.10

The crucial question is, of course, how to distinguish between the real need for new rights (or for the extension of existing rights) and those claims that do not deserve to be formulated using the human rights framework. There is probably no precise formula for answering this question. Rather, it seems that the only way to address this issue is through the exercise of prudential judgment and a careful analysis of each new claim in order to assess if the human goods at stake are important enough to lead to the recognition of a new right or to the extension of an existing right. Some authors have suggested that, in order to prevent the pernicious phenomenon of rights inflation, we have to impose ‘justificatory tests’ for any new potential human right. For example, James Nickel has proposed that, in order to recognise a new human right, it could be required

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J. Nickel, Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights (Berkeley: University of California Press, 1987), p. 561. N. Bobbio, The Age of Rights (Cambridge, MA: Polity Press, 1996), p. 19. Ibid.

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not only that it deals with some very important good but that it also responds to a common and serious threat to that good; in addition, the new right should impose burdens on the addressees that are justifiable and no larger than necessary, and be feasible in most of the countries in the world.11 Similarly, the international law scholar Philip Alston has suggested a list of criteria that a given claim must satisfy in order to qualify as a ‘human right’ in terms of international law.12 In his view, the proposed new human right must, inter alia, ‘reflect a fundamentally important social value’; ‘be consistent with, but not merely repetitive of, the existing body of international human rights law’; ‘be capable of achieving a very high degree of international consensus’; and ‘be sufficiently precise as to give rise to identifiable rights and obligations’.13 As argued throughout this chapter, the human goods that are at stake in the field of genetics are sufficiently important and specific to meet the above-mentioned requirements for the recognition of new human rights, or at least for the extension of some traditional human rights. Genetic rights deal with issues concerning the confidentiality of very sensible personal data, with the principle of equal treatment that is jeopardised by a new and particularly pernicious form of discrimination, and with our psychological integrity, which may be seriously harmed by the unsolicited disclosure of genetic testing results. If we adopt the ‘justificatory test’ proposed by Nickel, we can reasonably conclude that the recognition of specific rights in the field of genetics is justified. The human goods at stake in this domain are undoubtedly important, and the increasing development of genetics at a global level makes it imperative to protect them against common and serious threats. Moreover, the protection of these goods does not impose excessive burdens on individuals and society and can be implemented in most countries in the world.

26.3 International Human Rights Law and Genetics The urgency to develop a regulatory framework for dealing with the new dilemmas arising from genetic advances became especially evident in the 1990s, after the launch of the Human Genome Project.14 The recourse to human rights for framing the legal responses to bioethical issues is not surprising: the history of bioethics is closely intertwined with the history of human rights. Moreover, the birth of bioethics is associated with the same dramatic events that marked the beginning of international human rights law: the Second World War, the Holocaust and the Nuremberg trials of Nazi war criminals. The UDHR of 1948, which would become the cornerstone of the international human rights law system, was to a significant extent informed by the horror caused by the revelation of brutal medical experiments in Nazi concentration camps. This shocking discovery led the Nuremberg trial in 1947 to develop the famous ten principles for medical research which have come to be known as the Nuremberg Code. Historians report that the details revealed at Nuremberg gave content to the rights recognised by Articles 4 through 20 11

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J. Nickel, ‘Human Rights’, in E. N. Zalta (ed.), Stanford Encyclopedia of Philosophy, 2014, available at: https://plato .stanford.edu/entries/rights-human/. P. Alston, ‘Conjuring Up New Human Rights: A Proposal for Quality Control’ (1984) 78 The American Journal of International Law 607. Ibid., at 615. The Human Genome Project (HGP) was an international project launched in 1990 by the US Department of Energy and the National Institutes of Health with the primary goals of identifying the approximately 20,000–25,000 genes in human DNA, and of determining the sequences of the chemical base pairs that make up human DNA. In addition to the United States, the international consortium comprised geneticists in the United Kingdom, France, China, Australia and Japan. The project was declared completed in April 2003. See F. S. Collins et al., ‘A Vision for the Future of Genomics Research’ (2003) 422 Nature 835.

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of the UDHR.15 As George Annas vividly notes, ‘World War II was the crucible in which both human rights and bioethics were forged, and they have been related by blood ever since.’16 The fact is that today, seventy years after the Nuremberg trials, all major international ethical and policy instruments relating to bioethics are framed in a human rights language.17 In addition to this historical connection between bioethics and human rights, there is also a practical reason for appealing to human rights to address bioethical challenges: there are few, if any, mechanisms other than human rights available to function as a global ‘lingua franca’ for dealing with biomedical-related issues.18 In this regard, it has been pointed out that ‘the human rights framework provides a more useful approach for analyzing and responding to modern public health challenges than any framework thus far available within the biomedical tradition’.19 Indeed, human rights offer a well-tested and long-established common language, rhetoric and institutional practice to be applied in order to achieve consensus both on the nature of bioethical problems and on the possible solutions to them.20 In responding to the novel challenges posed by biomedical developments, and especially genetics, international and regional human rights law has shown a great adaptive ability. Two intergovernmental organisations in particular have played a crucial role in the use of a human rights strategy to this purpose: UNESCO and the Council of Europe. 26.3.1 UNESCO and Genetic Rights From the very beginning of its foundation in 1946, the UN Educational, Scientific and Cultural Organization (UNESCO) was very closely related to the human rights movement that emerged in the aftermath of the Second World War. During the preparatory discussions for the elaboration of the UDHR at the newly created United Nations, UNESCO decided to anticipate the philosophical questions that such a declaration would inevitably raise: could any values be said to be common to all countries? What would it mean to speak of certain rights as ‘universal‘? In order to address these difficult questions, UNESCO invited a group of leading thinkers of the time to develop a list of key questions about the theoretical problems arising in the formulation of an ‘international declaration of human rights’. The resulting questionnaire was sent out to scholars and statesmen around the world.21 Interestingly, despite the very different philosophical, religious and cultural backgrounds of the respondents, the lists of basic rights and values proposed by them were broadly similar.22

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R. Baker, ‘Bioethics and Human Rights: A Historical Perspective’ (2001) 10 Cambridge Quarterly of Healthcare Ethics 242. See also H. Schmidt, ‘Bioethics, Human Rights and Universalisation: A Troubled Relationship?’, in S. Vöneky et al. (eds.), Legitimation ethischer Entscheidungen im Recht. Interdisziplinäre Untersuchungen (Berlin: Springer, 2009). G. J. Annas, American Bioethics: Crossing Human Rights and Health Law Boundaries (New York: Oxford University Press, 2005), p. 160. R. Andorno, Principles of International Biolaw: Seeking Common Ground at the Intersection of Bioethics and Human Rights (Brussels: Bruylant, 2013), pp. 52–57. L. Knowles, ‘The Lingua Franca of Human Rights and the Rise of a Global Bioethics’ (2001) 10 Cambridge Quarterly of Healthcare Ethics 253; D. Thomasma, ‘Proposing a New Agenda:  Bioethics and International Human Rights’ (2001) 10 Cambridge Quarterly of Healthcare Ethics 299. J. Mann, ‘Health and Human Rights: Protecting Human Rights Is Essential for Promoting Health’ (1996) 312 British Medical Journal 924. R. Ashcroft, ‘Could Human Rights Supersede Bioethics?’ (2010) 10 Human Rights Law Review 639. Among the notable thinkers who responded to the questionnaire were Mahatma Gandhi, Pierre Teilhard de Chardin, Jacques Maritain, Benedetto Croce and Aldous Huxley. See M. A. Glendon, A World Made New:  Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2002), pp. 73–78.

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Since that pioneering discussion about the possibility of universally recognised human rights, UNESCO has been involved, over the years, in various issues at the intersection of philosophy, science and human rights. In the 1990s it started to fulfil a standard-setting role in the field of global bioethics and decided to set up an International Bioethics Committee. As a result of this activity, UNESCO developed three international declarations, two of which are specifically focused on genetics:  the Universal Declaration on the Human Genome and Human Rights (UDHG) (1997),23 the International Declaration on Human Genetic Data (IDHGD) (2003)24 and the Universal Declaration on Bioethics and Human Rights (UDBHR) (2005).25 The UDHG, adopted in 1997, is a pioneering document in international law as it is the first intergovernmental instrument specifically aimed at protecting human rights in the field of genetics. In brief, the Declaration intends to prevent genetic reductionism and any use of genetic information that would be contrary to human rights and human dignity. Accordingly, the Declaration bans discrimination based on people’s genetic characteristics (Art. 6), stipulates that private personal genetic information should be treated as confidential and not communicated to others without a person’s consent (Arts. 5b and 7), and recognises the right not to know one’s genetic characteristics (Art. 5c). A much more ambitious goal of the Declaration is the preservation of the human genome from improper manipulations that may endanger the identity and integrity of future generations.26 Consistently with this aim, the Declaration qualifies the human genome as ‘the heritage of humanity’ (Art. 1). This notion is inspired by the international law concept of ‘common heritage of humanity’, which holds that the world’s natural and cultural resources should be held in trust for future generations and be protected from exploitation by nation-states or corporations.27 The inclusion of the human genome in this category has a revolutionary character in international law, according to one of the experts who was involved in the drafting of the Declaration.28 It should be mentioned, however, that UNESCO is not alone in appealing to the notion of common heritage of humankind in this domain, as the Council of Europe has also adopted similar statements.29 The UDHG marks the first time that humanity as such is regarded by the international community of states as a common heritage to be protected.30 Certainly the notion of ‘crimes against humanity’, the clearest example being genocide, has been part of international law since the end of the Second World War. However, the category of crimes against humanity aims to prevent particularly odious offences against specific ethnic, social or religious groups and therefore

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Available at http://portal.unesco.org/en/ev.php-URL_ID=13177&URL_DO=DO_TOPIC&URL_SECTION=201 .html. Available at http://portal.unesco.org/en/ev.php-URL_ID=17720&URL_DO=DO_TOPIC&URL_SECTION=201 .html. Available at https://unesdoc.unesco.org/ark:/48223/pf0000146180. F. Francioni, ‘Genetic Resources, Biotechnology and Human Rights:  The International Legal Framework’, in F. Francioni (ed.), Biotechnologies and International Human Rights (Oxford: Hart Publishing, 2007), p. 11; D. Ruggiu, Human Rights and Emerging Technologies: Analysis and Perspectives in Europe (Singapore: Pan Stanford Publishing, 2018), p. 16. See K. Baslar, The Concept of the Common Heritage of Mankind in International Law (The Hague:  Nijhoff, 1998), p. 81. See statement by M. Bedjaoui in UNESCO, Proceedings of the Fourth Session of the IBC (3–4 October 1996), vol. I (Paris: UNESCO, 1997), p. 47. Council of Europe (Parliamentary Assembly), Recommendation 1512 (2001), Protection of the Human Genome by the Council of Europe, 25 April 2001; see also below, Section 26.3.2. C. Byk, ‘A Map to a New Treasure Island: The Human Genome and the Concept of Common Heritage’ (1998) 23 Journal of Medicine and Philosophy 235.

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does not cover the integrity of humanity as such (i.e. its genetic structure), which is precisely the main purpose of the Declaration.31 It is true that the final version of the UDHG did not take up the complete expression ‘common heritage of humankind’ which was included in the previous drafts of the document. Instead, Article 1 provides that ‘in a symbolic sense, it [the genome] is the heritage of humanity’. This change was intended to respond to the concern of some states that the notion of ‘common heritage of humankind’ could be interpreted in the sense of a ‘common property’, and facilitate the appropriation of human genetic sequences by multinational companies.32 There was also the fear that the category of ‘common heritage of humankind’ could pose a threat to individual rights and be used as an entitlement for enhancing the human gene pool, that is for eugenic purposes. Therefore, the qualifying phrase ‘in a symbolic sense’ was used to stress the radical difference between the genetic structure of humankind and other ‘external’ goods that have been included in this category in the past (sea beds, outer space, the moon, etc.). In sum, the label of ‘heritage of humanity’, when applied to the human genome, aims to emphasise, first, that genetic research engages the responsibility of the whole of humanity and that its results should benefit present and future generations,33 and, second, that the human genome as such is not suitable for appropriation by any state or corporation.34 Two specific practices are regarded as ‘contrary to human dignity’: human reproductive cloning (Art. 11) and germ-line interventions (Art. 24). The IDHGD, adopted in 2003, can be seen as an extension of the UDHG. It sets out more detailed rules for the collection, use and storage of human genetic data. It covers, among other issues, informed consent in genetic testing, confidentiality of genetic data, the ban on genetic discrimination, the anonymisation of personal genetic information, population-based genetic studies, the right not to know one’s genetic make-up, genetic counselling, international solidarity in genetic research and benefit-sharing. Finally, UDBHR has a much broader scope than the two previous declarations as it aims to provide a comprehensive ‘framework of principles and procedures to guide States in the formulation of their legislation, policies and other instruments in the field of bioethics’ (Art. 2a). The overall objective of the document is to promote the development of biomedical practice and research in conformity with respect for ‘human dignity, human rights and fundamental freedoms’ (Art. 3.1). The Declaration includes a list of sixteen principles, some of which are applicable to genetics, such as the requirement of informed consent for any biomedical intervention (Art. 6), the protection of confidentiality of personal information (Art. 9), the prohibition of discrimination and stigmatisation for health reasons (Art. 11), and the need to protect future generations (Art. 6). It is important to mention that these three declarations have been unanimously adopted by UNESCO member states (at present 195), that is by virtually all states of the world. Considering the sensitive nature of bioethical issues, which are closely related to socio-cultural and traditional values of each society, this unanimity has great value in terms of granting legitimacy to the principles embedded in these declarations.

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B. Mathieu, Génome humain et droits fondamentaux (Paris: Economica, 2000), p. 92. B. M. Knoppers, Le génome humain: patrimoine commun de l’Humanité? (Montreal: Fides, 1999), p. 35. H. Gros Espiell, ‘Introduction’, in UNESCO, Genèse de la Déclaration universelle sur le génome humain et les droits de l’homme (Paris: UNESCO, 1999), p. 3. R. Ida, ‘Human Genome as Common Heritage of Humankind’, in N. Fujiki and D. Macer (eds.), Bioethics in Asia (Tsukuba: Eubios Ethics Institute, 1998).

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26.3.2 The Council of Europe and Genetic Rights The Council of Europe has also made an important contribution to the development of human rights standards relating to biomedicine in general, and to genetics in particular. The most important step in this area was the development of the Convention on Human Rights and Biomedicine (also known as the ‘Oviedo Convention‘), which was opened for signature to member states in 1997. This document is unique in that it is the only intergovernmental binding instrument that comprehensively addresses the linkage between human rights and biomedicine.35 It is worth mentioning that the Convention presents itself, not as a bioethical instrument, but as a human rights instrument that specifically deals with biomedical issues: the very goal of the Convention is defined in relation to the need to protect human rights and human dignity in the context of biomedical developments.36 Although the Convention offers a general normative framework for all issues related to bioethics, several of its provisions are clearly applicable to genetics. In brief, the most important provisions are the following:  the requirement of informed consent for any biomedical intervention, including genetic testing (Arts. 5 to 9), the right to confidentiality of personal medical records, the right to be informed and the right not to be informed (‘right not to know’) about one’s health condition (Art. 10), the right to be protected against genetic discrimination (Art. 11), the requirement that predictive genetic tests can only be performed for medical and research purposes (Art. 12),37 the prohibition of germline interventions (Art. 13) and the requirement that assisted reproductive techniques should not be used to select the sex of a future child, except where serious hereditary sex-related disease is to be avoided (Art. 14). Genetics-related issues also occupy an important place in the Explanatory Report to the Oviedo Convention.38 For instance, the Report acknowledges that genetic developments create new concerns with regard to both individuals and the human species as such (para. 14). Furthermore, after recognising the preventive and therapeutic potential of the new genetic knowledge, the Report warns against the risk that genetic testing ‘may become a means of selection and discrimination’ (para. 74). Interestingly, when commenting on Article 11, which prohibits discrimination based on the genetic data of an individual, the Report seems to derive this specific ban from the general prohibition of discrimination contained in Article 14 of the European Convention on Human Rights.39 In other words, the right against genetic discrimination is presented as an extension of the more general right against any form of discrimination.

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The Convention has so far been ratified by twenty-nine states. The countries having ratified the Convention are:  Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Greece, Hungary, Iceland, Latvia, Lithuania, Macedonia, Moldova, Montenegro, Norway, Portugal, Romania, San Marino, Serbia, Slovakia, Slovenia, Spain, Switzerland, and Turkey. See www.coe.int/en/ web/conventions/full-list/-/conventions/treaty/164. According to Art. 1, ‘parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine.’ Therefore, genetic testing cannot be performed, for instance, by employers as part of pre-employment medical examinations. Council of Europe, Explanatory Report to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, Oviedo, 4 April 1997. ‘Under Article 14 of the European Convention on Human Rights, the enjoyment of the rights and freedoms set forth in the Convention must be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. Article 11 adds to this list a person’s genetic heritage’: ibid., para. 76 (emphasis added).

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In spite of the derivative nature of the prohibition of genetic discrimination, the Council of Europe has considered it necessary to formally recognise a specific ban on this practice, probably due to the distinctive form in which genetic discrimination may take place, and also in order to clarify any possible doubts in this regard. In 2008 the Council of Europe opened for signature an Additional Protocol to the Convention that develops, in more detail, the Convention’s provisions that relate to genetic testing for health purposes.

26.4 Genetic Rights in European Domestic Laws In addition to the intergovernmental instruments mentioned above, various countries, especially in Europe, have passed specific laws since 2000 to respond to the challenges posed by genetics. The most impressive example in this regard is the Estonian Human Genes Research Act (2000, revised in 2007, 2010 and 2014), which provides the legal framework for the creation of a large-scale biobank in Estonia.40 Other examples include the German Law on human genetic testing (Gendiagnostikgesetz, 2009), the French bioethics Law no. 2004–800 (2004, revised in 2011), the Swiss Law on human genetic testing (2004), the Swedish Law on genetic integrity (2006) and the Austrian Law on genetic technologies (Gentechnikgesetz, 1994/2005). It is worth mentioning that in 2008 the USA passed a specific federal law to prevent genetic discrimination (Genetic Information Nondiscrimination Act). Interestingly, several of these legal regulations are couched in a rights language. For instance, the German law on genetic testing refers to the ‘right not to know’ (Recht auf Nichtwissen) (Art. 9.2.5), which is based on the ‘right to informational self-determination’ (Recht auf informationelle Selbstbestimmung) (Art. 1). Similarly, the aforementioned Swiss law refers to the ‘right not to know’ (Art. 6) and to the ‘right to self-determination’ in relation to the use of various genetically based diagnostic procedures (Arts. 15 and 18). It is noteworthy that these new rights recognised by some domestic laws are the same that are included in the international human rights documents dealing with genetics. This overlap of international and domestic laws is understandable given the increasing internationalisation of law in many domains and the global nature of the new threats posed by genetic advances. Therefore, the question whether these rights are ‘civil law rights’, ‘fundamental rights’ or ‘human rights’ is not very relevant, as they fit into all of these categories at the same time. Depending on the context, the analysis may focus on one or other level. As Mireille Delmas-Marty points out, ‘these new legal concepts with universal vocation are not intended to substitute the domestic legal systems, but to combine with them in a complementary and interactive manner’.41 At this point, it is worthy of note that the most comprehensive and systematic use of a human rights framework for addressing genetics-related issues is exemplified by the above-mentioned Estonian Human Genes Research Act. This law recognises a number of rights for participants in the Estonian population biobank, such as the right not to know their genetic data (Art. 11.1), the right to have access to their data stored in the database (Art. 11.2), the right to genetic counselling (Art. 11.4), the right to submit additional information on themselves to the database (Art. 11.5) and the right to withdraw their consent at any time (Art. 12.4.7). It is helpful to contrast the Estonian and Icelandic experiences in dealing with the regulation of large-scale biobanks. At the end of the 1990s both countries were the first to attempt to 40 41

The Estonian Human Genes Research Act is available at: www.riigiteataja.ee/en/eli/518062014005/consolide. M. Delmas-Marty, ‘Études juridiques comparatives et internationalisation du droit’, 2004, p.  2, available at www .college-de-france.fr/media/mireille-delmas-marty/UPL12983_delmasmarty0203.pdf.

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establish population biobanks, and to pass specific laws to address the new dilemmas these raised. However, the planned Icelandic biobank failed for having ignored human rights principles, while the Estonian project, which adopted a solid human rights framework, still continues, although with adaptations. The Icelandic database was, from the very beginning, extremely controversial. One of the reasons for the opposition to the project was that the private company that was to operate and own the biobank – deCODE Genetics – was authorised by law not only to collect health data from volunteers but also to enter existing patient records from Iceland’s national health care system into the database without the explicit consent of patients. Indeed, the Healthcare Sector Database Act (1998) presumed the consent of all Icelanders for their data to be entered into the database unless they explicitly opted out. The Icelandic Medical Association opposed the presumed consent model and many doctors refused to hand over their patients’ records without their consent. Another reason for the opposition to the project was the confidentiality issue. Although the law stipulated that the biobank would only contain ‘non-personally identifiable health data’, critics of the project claimed that confidentiality safeguards were not secure enough, because the one-way coding of personal identifiers did not really render the data non-personally identifiable.42 The fact is that, especially in a small country like Iceland, all the donors’ information, if combined, could have allowed the connection of data to a certain individual, particularly in cases of rare conditions. Taking into account this possibility of indirect identification, Iceland’s Supreme Court ruled on 27 November 2003 that the Healthcare Sector Database Act was unconstitutional because it failed to adequately protect confidentiality. According to the decision, although the Act repeatedly stipulated that health information should be non-personally identifiable, ‘it is far from being adequately ensured that this objective will be achieved’.43 The judgment of the Court declaring the unconstitutionality of the Healthcare Sector Database Act was a hard blow for the project. For this and other reasons, deCODE decided to abandon the initial project of a population-based biobank and started to collect data exclusively from donors on a voluntary basis. Trying to learn from the mistakes of the Icelandic experience, Estonia passed the Human Genes Research Act in 2000, which provided the legal framework for the Estonian Genome Project (EGP). As mentioned above, the Estonian law places a strong emphasis on individuals’ rights. Participation in the project is strictly voluntary and informed consent is required for the collection of biological samples, health information and genealogical data (Art. 9.1). The information provided to participants includes not only the means and risks of obtaining the samples but also all the rights to which participants are entitled. The law guarantees the confidentiality of data through high-level technical encoding of personal identifiers (Arts. 22 to 24). All research studies have to be previously approved by an ethics committee (Art. 29). In addition to the participants’ rights already mentioned, the law also includes specific norms to prevent genetic discrimination in insurance and employment contracts (Arts. 25 to 27). Interestingly, this legal framework was developed with the help of international experts such as Bartha Knoppers and

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E. Árnason, ‘Personal Identifiability in the Icelandic Health Sector Database’ (2002) Journal of Information, Law and Technology, available at: www2.warwick.ac.uk/fac/soc/law/elj/jilt/2002_2. See R. Adalsteinsson, ‘The Constitutionality of the Icelandic Act on a Health Sector Database’, in J. Sandor (ed.), Society and Genetic Information:  Codes and Laws in the Genetic Era (Budapest:  Central European University Press, 2003).

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others, and took into account international legal instruments like the European Convention on Human Rights and Biomedicine and the UDHG.44

26.5 The Need for Specific Rights in the Field of Genetics The above analysis has shown that there is an international consensus about the need for specific legal frameworks to promote human rights in the field of genetics. This does not mean, however, that all the rights recognised in this particular field have or should have the same character. One of the conclusions that can be drawn from analysis of the international and domestic legal norms relating to genetics is that there are two categories of ‘genetic rights’. The first category encompasses those rights that are developed as extensions of traditional human rights into the specific field of genetics, such as the right to confidentiality of personal genetic data and the right against genetic discrimination. The second category is made up of those rights that are better described as entirely new, such as the right not to know one’s genetic information. The derivative character of the first category of ‘genetic rights’ does not imply that their legal recognition is superfluous or purely rhetorical. Considering the complexity and sensitivity of genetic data, national law-makers and intergovernmental organisations have considered it necessary to adopt specific regulations and to recognise distinctive rights relating to genetics in order to prevent any ambiguity and to implement adequate measures in this area. It must be noted that personal genetic data may be of a more sensitive nature than other personal data for at least three reasons. First, genetic data can predict predispositions to diseases not only in the individuals who have been tested but also in their blood relatives. Thus, unlike other personal data, genetic information is not only an individual, but also a family affair. Second, genetic data provide uniquely identifying information, including the capacity to confirm, deny or reveal family relationships. Third, genetic data can be obtained from a very small amount of biological material (from a hair, a blood or saliva sample, etc.), even without the knowledge of the individual.45 Yet some ‘genetic rights’ are better understood as entirely new and not merely extensions of existing human rights. The best example of this is the right not to know one’s genetic information, which does not have any precedents in previously recognised rights. Moreover, at first sight this right may appear to contradict an already well-established principle of medical ethics and law: that patients have a right to know about their health condition in order to be able to give informed consent to any therapeutic, preventive or diagnostic measures proposed by the health care professional. But the fact is that, in some circumstances, and especially in the context of predictive genetic testing, patients may have a legitimate interest in not being informed about their genetic predispositions, in particular when no therapeutic or preventive measures are available and their ignorance does no harm to other individuals. Although the right not to know can ultimately be philosophically grounded on the need to preserve personal autonomy and mental integrity, it is distinct enough from these basic human interests to require a specific and explicit recognition by law, and to be usefully considered on its own terms as entirely new.46 The right not to know is a response to the increasing predictive power of genetic tests, by means of which more and more people may come to know that they 44

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A. Rannamäe, ‘Estonian Genome Project: Large Scale Health Status Description and DNA Collection’, in B. M. Knoppers (ed.), Populations and Genetics: Legal and Socio-Ethical Perspectives (Leiden: Martinus Nijhoff Publishers, 2003), p. 23. See Art. 4 of the 2003 International Declaration of Human Genetic Data. See R. Andorno, ‘The Right Not to Know: An Autonomy Based Approach’ (2004) 30 Journal of Medical Ethics 435.

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are at risk of a serious inheritable disease with no real chance of reducing that risk or of obtaining effective treatment. For many people, the discovery that they have a genetic, untreatable condition could so depress them that the quality, joy and purpose of their lives would literally evaporate.47 In such situations ‘it may not be justifiable to take away hope from a person by exposing them to knowledge they do not want’.48 Therefore, it seems fair to recognise their right to choose not to receive that potentially harmful information and to continue their lives in peace.49 It must be noted, however, that the refusal to be informed about one’s genetic status may, in some cases, be problematic, because genetic information is not only an individual but also a family issue. Genetic testing may alert family members about a high risk of a serious geneticsrelated disease and, whenever possible, give them the opportunity to adopt some preventive or therapeutic measures. This is why the right not to know is not absolute but relative, and can be overridden when disclosure to the individual is necessary to prevent serious harm to blood relatives (in particular, when some form of prevention or treatment is available). Interestingly, the right not to know was specifically developed for dealing with genetics-based conditions (i.e. inheritable conditions). This is another argument in favour of regarding it as entirely new, rather than emphasising the connection to broader rights in other fields. By way of contrast, it can be claimed that this right does not apply to contagious or communicable diseases (i.e. those caused by microorganisms such as bacteria and viruses), because people affected by these conditions may present a danger to others and their ignorance about their disease can facilitate contagion. In such a context, the value of autonomy is not strong enough to justify the recognition of a right not to know.50

26.6 Beyond Human Rights: Further Challenges The recourse to a human rights framework allows a well-tested common language and institutional practice to be used to normatively address many genetics-related dilemmas. However, human rights are unable to satisfactorily address all the challenges posed by genetic developments. In particular, human rights are powerless to deal with biotechnological developments which put at risk not the rights of existing individuals, but the integrity and identity of future individuals and of humankind in general, such as reproductive cloning and germline interventions. In the case of human cloning, the human feature which is at stake is biparentality, that is the fact that human beings are conceived by the fusion of genetic information provided by two different individuals, a male (‘father’) and a female (‘mother’). This combination of genetic information from two individuals results in children that differ genetically and physically from their parents and from each other, and are absolutely unique. In contrast, reproductive cloning would produce individuals who are genetically and physically identical to their parents (or to third persons), and would be placed in a difficult position to develop their sense of selfhood

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R. Wachbroit, ‘Disowning Knowledge: Issues in Genetic Testing’, in V. Gehring and W. Galston (eds.), Philosophical Dimensions of Public Policy (New Brunswick: Transaction Publishers, 2002). R. Chadwick, ‘The Right to Know and the Right Not to Know:  Ten Years On’, in C. Rehmann-Sutter and H. Müller (eds.), Disclosure Dilemmas: Ethics of Genetic Prognosis after the ‘Right to Know/Not to Know’ Debate (Farnham: Ashgate, 2009). The right not to know has been expressly recognised by the 1997 and 2003 UNESCO declarations mentioned above, by the Oviedo Convention and by a number of domestic laws, especially in Europe. See, for instance, Art. 11.4 of the German Law on human genetic testing (2009), Art. 6 of the Swiss Law on human genetic testing (2004) and Art. 1111–2 of the French Public Health Code (introduced by the Law on patients’ rights, 2002). R. Andorno, ‘The Right Not to Know Does Not Apply to HIV Testing’ (2016) 42 Journal of Medical Ethics 104.

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and uniqueness, as it is very likely that they will be perceived in society as ‘copies’ of other individuals.51 Germline interventions are problematic as they implicate the genetic predetermination of future individuals, and thereby have the potential to cause irreversible harm to them. Indeed, these procedures consist in introducing modifications into the germ cells (gametes) or early embryos before the stage of differentiation, which would be passed to future generations. Moreover, given their possible misuse for eugenic purposes, germline ‘gene editing’ procedures pose entirely new and unprecedented concerns. Today, we realise that, paradoxically, the freedom of future individuals is to some extent subject to the condition that their features are more due to chance than to choice. As Habermas has pointed out, chance (i.e. the absence of a deliberate predetermination of future children’s features) has a moral value in itself in human reproduction and deserves to be protected. For this reason, he insists on the urgency to develop an ‘ethics of the species’ (Gattungsethik) to respond to the challenges posed by biotechnological developments.52 These tremendous challenges have to be considered in the broader context of intergenerational justice. Today there is growing awareness that the present generation has the responsibility not to harm the likely needs of future generations. This intergenerational responsibility includes not only the preservation of the world’s environment, but also the identity and integrity of future generations and, more broadly, of the human species as such. From this perspective, it can be argued that the present generation should abstain from predetermining the genetic make-up of future individuals, because that would amount to an instrumentalisation by ‘designing’ them according to the particular conceptions of ‘good’ and ‘bad’ human traits that are currently dominant. In other words, genetics should not become the instrument of a kind of ‘intergenerational tyranny’. For present purposes, the point is that it is hard to see how such intergenerational justice could be couched in terms of ‘rights’.53 Future generations are certainly the object of the present generation’s responsibility.54 However, future generations are not subjects of rights, in the sense that they are not entitled to a ‘right’ to their own integrity or identity because rights are claims that only belong to existing individuals, or eventually to groups of individuals,55 but not to persons who do not exist yet, and even less to future generations in general or to the human species 51

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See H. Jonas, Technik, Medizin und Ethik: Zur Praxis des Prinzips Verantwortung (Frankfurt: Suhrkamp, 1987). It is interesting to point out that, even from a purely biological perspective, biparental (i.e. sexual) reproduction offers the immense advantage of contributing to the removal of bad genetic mutations and of putting two beneficial mutations together. In addition, it increases the genetic variability in living beings of the same species and, in the long run, allows the best adaptations to the environment to be extended across the species. This is why biparentality is regarded by biologists as a hallmark of evolution and as a key feature of advanced animals. From this perspective, introducing asexual reproduction in humans would constitute the most dramatic biological regression that humankind has ever experienced. See J. Habermas, Die Zukunft der menschlichen Natur: Auf dem Weg zu einer liberalen Eugenik (Frankfurt: Suhrkamp, 2001); translation: The Future of Human Nature (Cambridge: Polity, 2003). See various proposals to address issues of intergenerational justice from an international law perspective in E. Agius and S. Bussutil (eds.), Future Generations and International Law (Oxford: Routledge, 2013). See Art. 16 of the Universal Declaration on Bioethics and Human Rights (2005), available at https://unesdoc.unesco.org/ ark:/48223/pf0000146180: ‘Protecting future generations: The impact of life sciences on future generations, including on their genetic constitution, should be given due regard’; The Preamble to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, Oviedo, 4 April 1997, in force 1 December 1999, ETS No. 164: ‘Affirming that progress in biology and medicine should be used for the benefit of present and future generations’. An example of a collective right is the ‘self-determination of peoples’, which is enshrined in the Charter of the United Nations.

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as such. This is why the claim sometimes made against cloning and germline modifications that they violate a ‘right not to be conceived as a genetic copy of another person’, or a ‘right to inherit non-manipulated genetic information’,56 respectively, are more rhetorical statements than conceptually consistent arguments. The recourse to a human rights terminology is understandable given the rhetorical appeal of human rights language and the lack of other widely accepted conceptual and legal tools to protect the integrity of humankind as such. However, it seems disproportionate and counter-productive to stretch the concept of human rights to the point that it is no longer recognisable. In this regard, it is helpful to recall the intergovernmental discussions that took place in the 1990s at UNESCO to develop an international instrument for the protection of future generations. After a consultation with a commission of legal experts, it was concluded that future generations do not have ‘rights’, since this concept always applies to existing persons. Accordingly, all references to the supposed ‘rights’ of future generations were removed from the initial draft declaration. The instrument that was finally adopted on 11 November 1997 was titled Declaration on the Responsibilities of Present Generations Towards Future Generations. In sum, it is doubtful that human rights are well suited to address the challenges resulting from the prospect of human cloning or human genetic engineering. Rather, it seems that, instead of resorting to human rights, it would be more appropriate to appeal to other conceptual tools, such as the intrinsic value of the human species and the importance of preserving its integrity and identity.57 As a matter of fact, international organisations dealing with bioethics are aware of the weakness of human rights in dealing with issues related to germline modifications and human cloning. This is why they resort directly to the notion of human dignity, and not to rights, to address these challenges. It is, however, important to note that human dignity is not used here with its primary meaning, which relates to the inherent value of every individual and the source of human rights, but with a secondary derivative meaning which refers to the intrinsic value of humankind as such, including future generations. Since dignity is a very rich and multifaceted notion, it is not surprising that it plays different, complementary roles in bioethics and biolaw.58 The fact is that, lacking any other conceptual tool at hand to preserve the integrity and identity of future generations, intergovernmental organisations appeal directly to human dignity, which is regarded as the last conceptual barrier against the genetic predetermination of future individuals. This secondary meaning of human dignity conveying the intrinsic value attached to humankind is clearly visible, for instance, in the UDHG, which labels the human genome as the ‘heritage of humanity’ (Art. 1) and condemns human reproductive cloning and germline interventions as ‘contrary to human dignity’ (Arts. 11 and 24 respectively). Similarly, the UN Declaration on Human Cloning of 200559 calls on member states ‘to prohibit all forms of human cloning inasmuch as they are incompatible with human dignity and the protection of human life’ (Paragraph d). Likewise, the European

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This supposed ‘right’ is mentioned by Recommendation 934 (1982) on Genetic Engineering adopted by Council of Europe’s Parliamentary Assembly (Paragraph 7.b.). See G. J. Annas, L. Andrews and R. Isasi, ‘Protecting the Endangered Human:  Toward an International Treaty Prohibiting Cloning and Inheritable Alterations’ (2002) 28 American Journal of Law and Medicine 151; G. J. Annas, ‘Crimes against the Human Species (“Type II Crimes against Humanity” Explained)’, in B. van Beers, L. Corrias and W. Werner (eds.), Humanity across International Law and Biolaw (Cambridge: Cambridge University Press, 2014). R. Andorno, ‘The Dual Role of Human Dignity in Bioethics’ (2013) 16 Medicine, Health Care and Philosophy 967. Declaration on Human Cloning, 16 February 2005, UN Doc. A/C.6/59/L.27/Add.1.

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Biomedicine Convention (Oviedo Convention) prohibits germline interventions on the ground that ‘they may endanger not only the individual but the species itself’.60

26.7 Conclusions In regulating the advances of medical genetics, human rights have a crucial role to play, given the sensitive nature of personal genetic information and the importance of the interests at stake in this field (confidentiality, non-discrimination, informational self-determination, etc.). It is therefore not surprising that international human rights law has expanded over the last two decades to cover the new branch of biomedicine that constitutes genetics. The great variety of issues relating to this field can be summarised in two key questions: first, how can the benefits of genetic advances be reconciled with respect for human rights? Second, how can the integrity and identity of humankind be preserved from an improper use of genetic technologies? To respond to the first question, some traditional human rights have been gradually reconfigured or further developed to cover the new issues, and other entirely new rights have emerged. In contrast, it is doubtful that the genetic identity and integrity of future generations can be preserved by resorting to a human rights approach. Rather, it seems that new conceptual tools have to be developed to adequately address the challenges posed by germline modifications and human reproductive cloning.

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See Explanatory Report to the Biomedicine Convention, Paragraph 89. Similarly, the 1998 Additional Protocol to the Convention bans human reproductive cloning on the grounds that it is ‘contrary to human dignity’ (Preamble).

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27 The Challenge of Genetics Human Rights on the Molecular Level? Judit Sándor

27.1 Introduction The editor of a groundbreaking book1 that explores the normative challenges posed by the recent advances of genetic research, Sheila Jasanoff, provides in her introduction a very powerful metaphor for describing what has happened in the field of genetics since the completion of the Human Genome Project. She claims that biological sciences have reached the phase of textuality. By this she means that, just like DNA sequences, genetic test results can also be written, recorded, stored, read and matched with other textual and non-textual information. She argues that this post-genomic period provides a transformative change in both law and the life sciences that should be considered ‘bioconstitutional’. Since the completion of the Human Genome Project in 2003, new legal challenges have emerged and law and ethics have provided two different kinds of responses to the legal challenges that have been accelerated following the completion of the Human Genome Project. One applied a ‘rhetoric of scepticism’ and vehemently argued that ‘there is nothing new, nothing special’ about genetic research and genetic data, while the other position emphasised novelty and the peculiarity of genetic data. From these two radically different approaches, two substantially different legal conceptualisations follow. The first does not see any necessity to adopt new legal norms or formulations of new human rights in the field of genetics. The other approach argues that new legal norms need to be articulated, including new human rights. Generally speaking, legal responses to this issue have tended to follow the former position and to be sceptical of new rights. Roberto Andorno seems to fall in line with this position to a certain extent: he does acknowledge ‘extensions of traditional human rights into the specific field of genetics’ throughout, but it is only the ‘right not to know’ that he classifies as ‘entirely new’.2 This is hardly surprising: an important element of legal thinking is that, in the face of new challenges, the law should not set up new legal institutions automatically, but rather endeavour to embed the new knowledge among existing legal principles with a view to maintaining proper consistency. If the legal system were turned upside down for every technical novelty or innovation, the basic construction of the rule of law would collapse due to the loss of predictability. This is why there is always a lesser drive for innovation in law than in the natural sciences. If a technical or scientific novelty emerges, legal thinking will often turn to incorporation and interpretation

1 2

S. Jasanoff (ed.), Reframing Rights: Bioconstitutionalism in the Genetic Age (Cambridge, MA: MIT Press, 2011). R. Andorno, in this volume, p. 345.

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(Andorno’s ‘extensions’3), rather than to the establishment of a new legal right. One purpose of this comment will be to show that this may not always be the best course of action. The underlying reason for this is the prevalence of many difference perspectives on the issues raised by genes and genomes. At the most basic level, there is disagreement even over the preliminary question whether we are facing a human rights problem in the field of genetics, or whether it constitutes a field which simply requires a more technical form of regulation on safety and logistics of research.4 Even if the perspective of human rights is accepted in principle, many dilemmas remain, for different conceptualisations remain possible in the course of legal argument. Whether as ‘promise’ or ‘fetish’,5 genes have been labelled passionately by academics and scientists across disciplines. Some see genes as vague but valuable entities and as such raise the issues of ownership and property. Some interpret genes as a form of personal data, capable of revealing significant information about the individual. Finally, genes can be seen as tools for diagnosis and therapy. The following sections will elaborate on these issues. I will begin by briefly considering both the merits and the limits of an approach based on human rights, such as the account given by Andorno. I share his sympathy for framing issues relating to genetics as human rights. However, as the examples given above indicate, I am less convinced that the reference to an indeterminate and contested framework of pre-existing rights is sufficient to allow for much guidance in practice. To demonstrate this, I will showcase various problems associated with genetic knowledge, broadly conceived, and the disagreement that comes with them. My conclusion will be that the deliberate codification of new rights is necessary to enshrine the results of public debate, thus acknowledging novelty in a stronger form than Andorno does.

27.2 Merits and Limits of the Human Rights Approach Andorno’s starting point is that ‘the recourse to human rights principles to address dilemmas arising from genetics … is justified’.6 In what way are human rights helpful? James Nickel, on whose theory Andorno relies, defines human rights as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people.7 Human rights norms as a global ‘lingua franca’ would thus provide an excellent frame for ethically challenging situations in which basic human conditions are altered by biomedical interventions. By providing key ethical concepts and fixing common basic norms, they would constitute a response to situations in which frequent technological and scientific changes amid ethical plurality would otherwise not allow for a detailed or immediate reaction to new issues.

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Ibid., pp. 337, 342. See Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells; Commission Directive 2006/17/EC of 8 February 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards certain technical requirements for the donation, procurement and testing of human tissues and cells; Commission Directive 2006/86/EC of 26 October 2006 implementing Directive 2004/23/EC of the European Parliament and of the Council as regards traceability requirements, notification of serious adverse reactions and events and certain technical requirements for the coding, processing, preservation, storage and distribution of human tissues and cells. K. Sunder Rajan, Biocapital: The Constitution of Postgenomic Life (Durham, NC: Duke University Press, 2006), p. 138. Andorno, in this volume, p. 335. James Nickel, Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights (Berkeley: University of California Press, 1987).

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A large number of established rights or concepts related to rights may be connected to the field of genetics in various ways: genetic research, testing, modification or genome editing influence our notion and expectations of privacy, access to personal information, access to new therapy or even to enhancement. Genetic rights may have both an individual and a collective dimension, and may resonate with social welfare. For instance, the right to decide on genetic testing is an individual decision, while access to health care based on genetic information also contains a collective dimension in that it becomes relevant for the general provision of health care services. Finally, there is the question of the duty-bearer. In general, it is states, not private persons, who have a duty to respect human rights. In the case of genetic rights, the state may provide a regulatory infrastructure, but in many cases companies and private health care providers are more directly connected to the situation in which genetic rights should be guaranteed. Within this complex web of rights claims, several concepts stand out as being of particular relevance for identifying genetic rights and thus demarcating ethical boundaries. Most importantly, according to Brownsword and Goodwin,8 human dignity is the key boundary-marking concept: ‘reference to human dignity is ubiquitous in debates about technological regulation, particularly where application of scientific knowledge touches upon the foundations of life, and, in particular, human life.’ Human dignity thus plays a key role in formulating the direction of new rights in the field of genetics. A further recurring element is nature, which is also used as a moral boundary marker against technological development. Furthermore, discussions on property are also relevant with regard to genetics. Property, including intellectual property, is presented as a boundary marker to determine what should be done with our genes. Framing dilemmas within the field of genetics as issues of human rights and connecting them to established human rights principles may thus carry significant advantages. However, the rights framework also has its limits. One of these is recognised by Andorno: the relevance of genetic dilemmas for future generations.9 Since political cycles tend to be short (typically around four to five years between parliamentary elections), it is very difficult to force successive governments to fulfil obligations to future generations. Furthermore, in many societies where a conservative view prevails on the right to life, these rights are used to reopen rather than to settle the debates on abortion, on research on human embryos, etc. This is why I agree with Andorno that it would be premature, at this point in time, to speak of transgenerational genetic ‘rights’ of future generations. However, the point about rights sparking debate rather than settling it indicates a more general limit of the human rights framework. Against the backdrop of differing conceptualisations as discussed above, genetic rights in human rights conventions and declarations may be interpreted very differently, or may be considered to have different implications depending on the political context. Wiktor Osiatnyński, a Polish human rights scholar, correctly pointed out that ‘[d]espite the proliferation of declarations, covenants, and other international agreements in the majority of countries in today’s world, human rights still are an ideal rather than the norm. Likewise, the presence of human rights in constitutions does not translate into actual respect for all human rights’.10 Actual respect requires consensus on the concrete interpretation of human rights – yet even the brief survey of human rights principles relevant to genetic issues conducted above serves to illustrate that a variety of perspectives or points of emphasis remain possible. Rights

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R. Brownsword and M. Goodwin, Law and Technologies of the Twenty-First Century:  Text and Materials (Cambridge: Cambridge University Press, 2012), p. 191. Andorno, in this volume, pp. 347f. W. Osiatyński, Human Rights and Their Limits (Cambridge: Cambridge University Press, 2009), p. 70.

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may therefore provide less guidance than it at first seemed, and their use as a ‘lingua franca’ is limited accordingly.

27.3 The Case of Genetic Knowledge To illustrate the limits of human rights, I  would like to take up the debate surrounding various aspects of genetic knowledge, broadly understood. In this field, legal issues are mostly concentrated around the problem of how new genetic information affects our basic human relations, family ties, decisions about reproduction, insurance, employment and intellectual property. To be more precise: how should genetic knowledge be conceptualised, what kinds of rights can be established with regard to genetic knowledge, who should have access to the relevant data and who is to control this intrinsically individualised, wide-ranging information that can easily be obtained by others? Is it the genetic sample itself that should be protected, or rather the data that can be revealed during an examination of the sample – or both? These questions showcase that the mere presence of a human rights framework does not, of its own accord, prevent controversies on concrete points. I will present these controversies, first at the general level of conceptualisation, then with regard to two specific genetic rights, and finally with regard to their limitation in cases of conflicting rights. 27.3.1 General Problems of Conceptualisation At the most general level, the dilemma could be phrased as follows: what is the legal nature of genetic information, genetic data and genetic samples? How should they be conceptualised: should genetic samples be treated as property, information or some combination of the two? To answer these questions, we need an account of why genetic knowledge is important and how, if at all, it differs from other medical knowledge. A common response is this: it is important for individuals to be aware of their genetic data and information because these data support more accurate diagnoses of any detectable illness or disease, and give insight into the individual’s future with the identification of certain susceptibility factors. Genetic information has brought about specific problems both in interpreting this kind of data, as well as protecting genetic data.11 Another characteristic of the situation is that in comparison with other medical data containing certain medical parameters of the person concerned, genetic data carries additional information.12 For example, as Andorno indicates, information on a hereditary disease may have a serious impact on the lives and decisions of family members who may not have wanted to subject themselves to test examinations. However, many distinguished social scientists, even bioethicists,13 do not subscribe to these special claims associated with genetic regulation. In order to challenge the legitimacy of special regulation, they point out that many characteristics of the data – their predictive value and particular sensitivity, for example – can also be ascribed to other types of data in health care. On this

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W. F. Mulholland and A. S. Jaeger, ‘Genetic Privacy and Discrimination: A Survey of State Legislation’ (1999) 39(3) Jurimetrics 317. See ECtHR, S. and Marper v. the United Kingdom (Appl. nos. 30562/04 and 30566/04), judgment, 4 December 2008, para. 72. S. Holm, for example, had already challenged this approach to genetic exceptionalism in his book chapter published in 1997: S. Holm, ‘There Is Nothing Special about Genetic Information’, in A. K. Thomson and R. Chadwick (eds.), Genetic Information: Acquisition, Access and Control (New York: Kluwer Academic, Plenum Publishers, 1999).

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view, there would be less reason for specific regulation, much less specific human rights. Even at the most foundational level, then, there is disagreement. 27.3.2 Indeterminacy and Controversy Regarding Various Rights Let me now provide some more specific examples of disagreement in the field of genetic knowledge. Consider, first, the prohibition of genetic discrimination. As Andorno notes,14 this is codified, for example, in Article 11 of the (legally binding) Oviedo Convention: ‘Any form of discrimination against a person on grounds of his or her genetic heritage is prohibited’.15 What Andorno does not mention, however, is that although the threat of genetic discrimination exists in several fields of life, the interpretation of this concept is not as evident as that of racial discrimination.16 Any person belonging to the genetic minority with respect to a specific characteristic may belong to the genetic majority in terms of another property. Nevertheless, being a part of the genetic minority may bring about positive social judgment, such as in the case of rare genetic properties that are regarded to be favourable – or negative social judgment in the opposite scenario.17 Genetic properties differ from most other characteristics that constitute the basis of discrimination in that they remain, in most cases, invisible. However, if others know about them, then they may cause uncertain, unforeseeable disadvantages to the person concerned and serve as a basis for various abuses: this is why genetic discrimination connects back to the broader issue of genetic knowledge. For example, if an employer becomes aware that some employees are genetically more susceptible to certain illnesses or diseases, it can easily be presumed that these employees would find themselves treated in a less favourable manner in spite of the fact that these characteristics do not constitute any monogenic irregularity, but just an increased level of susceptibility. In the field of genetic discrimination, both science and law have so far failed to provide clear and coherent guidance for interpretation despite the general commitment to prevent discrimination. For example, in an important book published in 2006, Keith Wailoo and Stephen Pemberton analysed the racial and medical context of Tay-Sachs disease, cystic fibrosis and sickle cell disease.18 It emerged that Tay-Sachs disease is associated with Jewish Americans, cystic fibrosis with Caucasians and sickle cell disease with African Americans. When race can be connected to genetic data in this way, it is difficult to see how public health could avoid the trap of a new kind of stigmatisation. A further example is the right to be warned about genetic risks. Legal rules relating to informed consent have tended to follow a model based on individualised information: this means that information is provided only to the patients themselves (provided that they are capable of 14 15

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Andorno, in this volume, pp. 342f. Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine, Oviedo, 4 April 1997, in force 1 December 1999, ETS No 164, available at: https://www.coe.int/ en/web/conventions/full-list/-/conventions/treaty/164. The European Union has been also surprisingly quick in codifying the prohibition of genetic discrimination: see Charter of Fundamental Rights of the European Union, Nizza, 7 December 2000, in force 1 December 2009, 2000 No. C 364/1, Art. 21. See also P. R. Billings et al., ‘Discrimination as a Consequence of Genetic Testing’ (1992) 50(3) American Journal of Human Genetics 476. J. Beckwith and J. S. Alper, ‘Reconsidering Genetic Discrimination Legislation’ (1998) 26 Journal of Law, Medicine and Ethics 205. K. Wailoo and S. Pemberton, The Troubled Dream of Genetic Medicine: Ethnicity and Innovation in Tay-Sachs, Cystic Fibrosis, and Sickle Cell Disease (Baltimore: The Johns Hopkins University Press, 2006).

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acting), while family members may be informed only if the patient expressly consents to this. It seems, however, that genetic information will potentially re-establish the provision of information not just to an individual, but also to their family. In the case of certain diseases, there are few people who undergo routine medical screening. Yet, when such a disease appears in a family, it is regarded as a reason for family members to take screening examinations and prevention more seriously, especially when the disease is known to be hereditary.19 With the enlarging scope of genetic knowledge, more and more diseases are likely to involve the obligation of physicians to warn family members of the patient.20 This issue clearly illustrates why some commentators argue in favour of rights that are specifically tailored to the field of genetics. However, it also makes clear that there are difficult value choices to make in each individual situation. The deviation from the classic model of individualised consent is controversial. It contrasts, for example, with the ‘right not to know’ which Andorno treats at length.21 He acknowledges that this right is not absolute, but must be overridden when the health of blood relatives is at stake. This raises the more general issue of conflicts between rights. 27.3.3 Conflicts between Rights The conflict between the right to be warned about genetic risks and the right not to know is just one example of ethical tensions in the field of genetics. Another is the tension between individual rights over a gene sequence and freedom of genetic research. The latter is mentioned, for example, in Article 15 of the UNESCO Declaration: ‘States should take appropriate steps to provide the framework for the free exercise of research on the human genome with due regard for the principles set out in this Declaration, in order to safeguard respect for human rights, fundamental freedoms and human dignity and to protect public health. They should seek to ensure that research results are not used for non-peaceful purposes.’22 The Myriad case, ultimately decided by the Supreme Court of the United States,23 illustrates the harm which may be caused by gene patents: for example, individuals may be denied access to genetic tests because a patent holder exercises exclusionary rights over a gene sequence. The debate on what is patentable within life sciences hardly seems to be settled. According to Judge Robert W. Sweet, who ruled in the Myriad case at the level of the District Court, ‘DNA’s existence in an “isolated” form alters neither this fundamental quality of DNA as it exists in the body nor the information it encodes. Therefore, the patents at issue directed to “isolated DNA” sequences found in nature are unsustainable as a matter of law and are deemed unpatentable’.24 This view was based on the interoperation of what is ‘natural’ and what is ‘artificial’ and thus demonstrates the relevance of foundational conceptualisations for legal argument. Where rights 19

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C. Lerman et al., ‘Family Disclosure in Genetic Testing for Cancer Susceptibility: Determinants and Consequences’ (1998) 1 Journal of Health Care Law and Policy 353. S. J. Durfy, T. E. Buchanan and W. Burke, ‘Testing for Inherited Susceptibility to Breast Cancer: A Survey of Informed Consent Forms for BRCA1 and BRCA2 Mutation Testing’ (1998) 75(1) American Journal of Medical Genetics 82. Andorno, in this volume, pp. 345f. Universal Declaration on the Human Genome and Human Rights, 1997. The Declaration was adopted unanimously and by acclamation at UNESCO's 29th General Conference on 11 November 1997. Official text available at https:// unesdoc.unesco.org/ark:/48223/pf0000122990. Supreme Court of the United States, Association for Molecular Pathology v.  Myriad Genetics, Inc., 569 U.S. 576 (2013), 133 S.Ct. 2107. District Court for the Southern District of New York, Association for Molecular Pathology et al. v. USPTO et al., 702F. Supp. 2d 181, 192–211, 2010 U.S. Dist. Lexis 3518 (emphasis added).

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conflict, the possibility of differing responses depending on one’s perspective becomes particularly clear: even if a right is accepted in principle, its ambit may still be severely curtailed by setting up a counter-right.25 Another new field of genetics which will soon require the development of legal norms is the increasing spread of genome editing techniques that may soon reach the human application. Recently the Nuffield Council published a report26 on genome editing and human reproduction. If this technology turns out to be safe and applicable in the field of human reproduction, it may fundamentally change the notion and scope of the right to life, reproductive rights, parental rights, the principle of non-discrimination and the right to privacy.

27.4 Conclusion: The Value of a New Catalogue of Genetic Rights I agree with Roberto Andorno that ‘genetic rights’ already appear, although sporadically, in several binding and non-binding legal instruments, including sui generis human rights law. I see the role of human rights differently, however. Andorno seems to be of the opinion that the current legal framework is sufficient and that general human rights can, in many cases, be extended or interpreted in such a manner as to provide solutions to genetic issues. In my view, by contrast, a new catalogue of human rights with more specific provisions would offer a better framework for incorporating new rights that may already have emerged in ethical and political debates. Interpretations of human dignity and general human rights such as the right to privacy may be helpful, of course, but on the whole, the scientific developments associated with genetics raise too many new legal questions to simply stretch the interpretation of established human rights; rather, they require a specific response. Most human rights norms in the biomedical field so far constitute a reaction to serious violations of basic ethical norms in research and patient’s rights in the twentieth century: lack of consent, pain and humiliation of research participants. Andorno rightly connects the emergence of bioethics to the aftermath of the Second World War. Nowadays, the focus has shifted:  the prevalence of information and the possibility of transforming human nature (by means of e.g. genome editing or gene therapy) demand a new human rights approach. I would submit that human rights are a process and that they develop constantly. It goes without saying that it would be a mistake to immediately reformulate general human rights in face of the latest advances in the technology of genome editing, since the assessments of its ethical implications are still ongoing. However, some solutions for conflicting legal interpretations have been agreed upon widely and compromises have been reached. Such compromises are rights in the pipeline, so to speak, and they may further develop and become widely accepted in the future. The human rights framework may not be able to provide answers to detailed questions on licensing, or on specific applications of the given technology, and so on; but to offer guidance at all, more specific compromises that were reached need to be retained in the form of a new human rights catalogue. Such a catalogue would then in turn influence the further interpretation of established human rights: in that regard, a parallel can be drawn to the way in which the European Court of Human Rights already takes provisions of the Oviedo Convention into account when interpreting the more general European Convention on Human Rights.27

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See generally e.g. Martti Koskenniemi, The Politics of International Law (Oxford: Hart, 2011), pp. 133–152. Nuffield Council on Bioethics, Genome Editing and Human Reproduction: Social and Ethical Issues, July 2018, available at http://nuffieldbioethics.org/project/genome-editing-human-reproduction. See for example ECtHR, Parrillo v. Italy (Appl. no. 46470/11), judgment, 27 August 2015, para. 182.

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In my view, advocating for new human rights in the field of genetics is based on two major arguments. One is that – as mentioned above – we simply cannot ignore the tremendous change that has occurred in the life sciences since the Human Genome Project. As the DNA of more and more patients are studied and used for research purposes, it becomes necessary to develop new ways of protecting the rights of human beings: hence new human rights. The second argument is the transnational nature of genetics. Legislation at the national level simply cannot respond to the complex data collection mechanisms of biobanks that use, for example, genetic sources from indigenous populations, and intend to patent genetic tests that are based on their genetic samples. A transnational response in the form of what Andorno calls a global ‘lingua franca’28 is therefore necessary: hence new human rights. I share the worries expressed by Andorno about the inflation of human rights.29 But I would conclude that reopening, to a certain extent, the catalogue of human rights that have developed after the Second World War would actually reinvigorate the interest in human rights. An entirely new generation of people has been born since the post-war human rights norms were formulated with the intention of protecting the human subject in biomedical research. The interpretation of these norms in genetic contexts may result in misunderstanding due to the lack of concrete guidance. The lack of interest in, and scepticism towards, human rights might be the result of a disconnect between the abstract formulation of human rights and the concreteness of everyday experience, with its various concerns, doubts and fears. We are witnessing incremental progress in the field of genetics and it seems that some ethical norms should be ‘upgraded’ to the level of human rights. The human rights approach may help to avoid discriminatory use of genetic data in genetic and ethnic profiling, testing and screening. If we accept the challenge of reformulating the catalogue of human rights for the twenty-first century, then we should take into account scientific advances and the related ethical, social and cultural concerns. At the same time, however, research methods applied by the life sciences should always be subject to critical assessment by society at large, and law is the main instrument for ensuring that such criticism gains social force. The extension of human rights on a cellular level should therefore likewise proceed carefully and critically.

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Andorno, in this volume, p. 339. Ibid., p. 336.

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28 The Right to Bodily Integrity Cutting Away Rhetoric in Favour of Substance A. M. Viens

What we should be able to do to our own bodies and the bodies of our loved ones is at the heart of many questions tackled by medicine, law and social policy. A central aspect of these questions concerning the body revolves around maintaining its physical integrity. It is widely held that preserving the physical integrity of the body is inherently valuable and that transgressing this integrity represents a distinctive form of wrongdoing. Indeed, some have argued that physical integrity is so important that we should have a right to bodily integrity (RBI). This chapter seeks to examine the nature and implications of such a right. In the first section, I provide a brief overview of and legal pedigree for the RBI – concentrating primarily on human rights sources and discourse around protections of the physical integrity of the human body. In the second section, I flesh out and develop some of the central conceptual underpinnings of the notion of bodily integrity and normative implications of how the RBI has been understood and interpreted within the literature, legal doctrine and public policy. In the third section, I explore what is new with the RBI – in particular the development of a specified, derivative right to genital integrity and claims that such a right would entail that a commonly practised medical procedure would constitute a human rights violation.

28.1 The Right to Bodily Integrity: Overview and Legal Pedigree It is absolutely essential to be clear on the nature of the RBI. Only through a clear articulation of the source and justification of the right will we have a clear understanding of its content, scope, strength, application and defeasibility conditions. These considerations are essential in determining which practices involving the body should be thought to engage the RBI and what it is about integrity-affecting interventions that may constitute either infringements or violations of the right. Within the rhetoric around the use of the RBI, such considerations are often ignored or underplayed. For instance, the right is often asserted to apply and to prohibit some practice without any robust argumentation or analysis as to how the nature of the right supports such conclusions. As will be elucidated throughout this chapter, we should be careful how we understand the RBI and how it should be used to regulate behaviours and practices involving the human body and its alteration. While the RBI is invoked within various areas of law, such as constitutional law,1 medical

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See, for instance, J. M. Shaman, Equality and Liberty in the Golden Age of State Constitutional Law (Oxford: Oxford University Press, 2008), chapter 8.

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law2 and tort law,3 I shall primarily be concerned with understanding the RBI within human rights law. I will begin with a very brief overview and legal pedigree of the right and its various articulations as an enumerated, delegated or interpreted human right. There are human rights sources where the RBI is stated as a free-standing, enumerated right. For instance, Article 3(1) of the EU Charter of Fundamental Rights4 states that ‘[e]veryone has the right to respect for his or her physical and mental integrity’.5 No definition of what integrity means is provided, however, so it remains an open question as to whether respecting someone’s physical integrity should mean, for instance, ensuring that someone’s body remains whole, whether that is an objective or subjective feeling of wholeness and whether considerations, such as consent or medical need, could make interventions that affect one’s physical wholeness acceptable from a human rights perspective. We also find the right articulated in Article 7(1) of the United Nations Declaration on the Rights of Indigenous Peoples,6 which states that ‘[i]ndigenous individuals have the rights to life, physical and mental integrity, liberty and security of the person’. Notice that in this articulation both physical integrity and security of the person are stated as different considerations. So not only do we still have the issue of needing to define what physical integrity means, we also need to be able to understand and articulate how security of the person differs from the physical integrity of the human body. Perhaps security of the person includes protection of one’s physical integrity, but does not exhaust its protections? Perhaps they do not overlap and should be understood to protect different aspects of personhood or the bodies of persons? Either way, it is for proponents of the RBI who base their views and arguments within these human right sources to provide an account and defence. These problems with understanding the content of the right continue when we look to other articulations of the RBI as a delegated right. For instance, it is claimed that the RBI can be found within human rights provisions which state that ‘[e]veryone has the right to liberty and security of person’.7 As before, notice again that in this articulation of the right, liberty and security are stated as different considerations. We are left with the need to understand both how liberty and security are connected or are different to each other and how they, separately or collectively, are related to the physical integrity of the body. Indeed, as I will suggest in the next section, these issues reflect some of the much larger problems with understanding the nature of the RBI – especially its content. There have also been efforts to understand the RBI as an interpreted right, in which the right is to be found inherent or implied within some other specified right. For instance, the RBI has, sometimes, been interpreted as being reflected in the human right to freedom from torture and cruel, inhuman and degrading treatment.8 It has also been interpreted as being reflected in

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See, for instance, K. Savell, ‘Sex and the Sacred: Sterilization and Bodily Integrity In English and Canadian Law’ (2004) 49 McGill Law Journal 1093. See, for instance, C. van Dam, European Tort Law, 2nd ed. (Oxford: Oxford University Press, 2013), p. 171. Charter of Fundamental Rights of the European Union, Nizza, 7 December 2000, in force 1 December 2009, OJ 2012 No. C 326/2. See also the Council of Europe, Resolution 1952 Children’s Right to Physical Integrity (2013). Resolution 2888 (XLVI-O/16) on American Declaration on the Rights of Indigenous Peoples, 15 June 2016, OAS Doc. OEA/Ser.PAG/doc.5557/16. For example, Art. 3 Universal Declaration of Human Rights; Art. 9(1) International Covenant on Civil and Political Rights; Art. 5 European Convention on Human Rights. For example, with reference to Art. 5 Universal Declaration of Human Rights; Art. 3 European Convention on Human Rights; Art. 7 International Covenant on Civil and Political Rights.

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the right to privacy,9 as well as in the right to the highest attainable standard of health.10 These attempts to ground the RBI in these interpreted rights only serve to muddy the waters further – both in terms of the nature of the right itself and on the question of whether there is anything new or distinctive about this human right. There remains a great deal of debate over what protecting privacy or health requires, let alone trying to find protections of physical integrity under such considerations. Trying to clarify or defend one right by reference to another right when large levels of disagreement and contention exist remains a dismal prospect for success. There are a few things, however, we can note through examining the legal sources of the RBI. First, its existence as either an enumerated, delegated or interpreted right – often within the same human rights instrument – speaks to the fact that these rights may differ in their content, scope, application and defeasibility conditions. For instance, while many acts of torture will involve transgressions of bodily integrity, most transgressions of bodily integrity will not constitute acts of torture. There is a great need to better understand the content of the RBI in order to be able to obtain a clear and justified idea of when the right is engaged and on what basis the right is violated. Second, in clarifying the content of the RBI, there is also a need to be able to consistently articulate what forms of intervention should count as violations of the right. The various articulations of the human rights sources as being concerned with physical integrity itself, a delegated consideration related to integrity (e.g. security) or an interpreted consideration incorporating integrity (e.g. health) are not all consistent or compatible, and do not provide a robust basis on which to be able to identify which integrity-affecting behaviours or practices constitute a human rights violation. Through an examination of the concept of bodily integrity itself and the normative implications of the right, it becomes more obvious why using and defending an RBI can be problematic for a number of reasons.

28.2 Some Problems with the CONTENT of the Right to Bodily Integrity Before proceeding, it is worth making a preliminary note about the context I  have in mind. Since there is a multitude of behaviours and practices that have been argued to violate the RBI, in order to help fix ideas I  shall restrict my background focus to one kind of context where the RBI is typically invoked: interventions which alter the human body that are carried out by professionals in non-antagonistic settings. The professionals I have in mind will usually be medical and allied health professionals, such as physicians, surgeons, nurses, phlebotomists, dentists and public health practitioners. Perhaps it could also be extended to other people who – as a central part of their profession – undertake conduct that involves affecting the integrity of the body in some non-insignificant way, such as tattoo artists, body piercers, mohels and sadomasochistisic sex workers. The focus on non-antagonistic interference with the human body merely provides a large and well-defined context in which to clarify how we should understand what bodily integrity is, what a right to protect it looks like and its application in the regulation of integrity-affecting behaviour and practices. In focusing on non-antagonistic settings, this will allow me to bracket 9

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For example, Art. 8 European Convention on Human Rights; Art. 17 International Covenant on Civil and Political Rights. For example, Art. 12 International Covenant on Economic, Social and Cultural Rights and Art. 24(3) Convention on the Rights of the Child. See also Committee on Economic, Social and Cultural Rights (CESCR) General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 ICESCR), 11 August 2000, UN Doc. E/C.12/ 2000/4, para. 8: the right to health includes ‘the right to be free from torture, non-consensual medical treatment and experimentation’.

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forms of conduct such as murder, assault, battery, robbery, physical restraint, corporal punishment, slavery, detention, imprisonment, bodily and strip searches, torture, kidnapping, forced labour and rape – which have also all been claimed to violate the RBI.11 Bracketing such forms of conduct, however, is not intended to imply that such behaviours or practices might not violate bodily integrity. It is merely to delimit a context wherein bodily integrity is invoked and to analyse whether it can be articulated in a clear and coherent fashion in order to underpin the right. 28.2.1 The Concept of Bodily Integrity The preservation and protection of bodily integrity is a principle frequently invoked in both law and morality.12 It is a normative principle that seeks to constrain what we should be allowed to do to human bodies or their constituent parts. Indeed, it is a principle that has been invoked within a multitude of topics within health law and ethics, including abortion, forced medical treatment, organ transplantation, separating conjoined twins, vaccination, male circumcision, female genital cutting, limb removal for bodily integrity identity disorder, and research on live and dead bodies. In addition to its pervasive use, it is often viewed as a decisive consideration that, when invoked, is typically treated as determining whether we are treating the human body in an acceptable way. As such, a principle of preserving or protecting bodily integrity risks being quite expansive, as there are a great many ways in which someone might intervene, modify or alter the human body in a way that could transgress its physical integrity. If this principle is to play a prominent role within law and policy, by helping to delimit which forms of conduct it is acceptable for our bodies and those of our loved ones to be subjected to, then its far-reaching nature may risk ruling out numerous interventions, many of which we currently practise and believe to be reasonable. As such, there is a critical need to understand what bodily integrity is, whether this concept helps pick out a distinctive way in which it is wrong to treat the body, and what kind of principle the preservation or protection of bodily integrity constitutes. Before going on to examine this principle as an RBI, it would be beneficial to examine the concept of bodily integrity itself and what might follow from it. The idea of bodily integrity is often underdeveloped and used without sustained reflection. I argue that, upon closer and careful explication, the idea of bodily integrity is often predicated on differing conceptions, often making presuppositions that lead to conflicting and incompatible ideas, or ideas that would rule out cases that we might think ought to be captured by the idea of bodily integrity. 28.2.1.1 The Physical Integrity of the Human Body While people typically invoke the principle of bodily integrity when they want to explain why some form of bodily intervention or alteration should be considered unlawful or immoral, they often fail to provide a robust definition of what physical integrity comprises, or they fail to provide an account detailing how we should understand when someone’s physical integrity has been transgressed. Bodily integrity is almost taken as some uncontroversial fact – we all have it, it is valuable and we should avoid instances where our physical integrity is transgressed. It is worthwhile, however, briefly examining the idea of physical integrity itself, which underlies such a principle.

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See, for instance, R. Miller, The Limits of Bodily Integrity: Abortion, Adultery and Rape Legislation in Comparative Perspective (Aldershot: Ashgate, 2007). See, for instance, A. M. Viens (ed.), The Right to Bodily Integrity (Farnham: Ashgate, 2014).

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Let us start with the idea of the ‘body’ in ‘bodily integrity’. Which bodies should have their integrity preserved or protected? Clearly the bodies of human beings  – but academics and jurists disagree as to whether a principle of bodily integrity solely applies to living humans who exist independently, or whether it should also include other human entities such as embryos, foetuses and dead bodies. Indeed, there are scholars who argue that restricting such protections to humans is unjustified and argue that some animals have an RBI.13 This is not to presuppose that a principle of bodily integrity would necessarily have equal application or stringency across all these different kinds of human bodies or other non-human entities, but there is still a need for a clear idea of which bodies might have a claim to have their integrity preserved or protected and, in turn, how such claims turn on the putative value of maintaining its integrity. The law, within different cases and contexts, has represented the human body in different ways – as a machine, as property, etc. As Alan Hyde has argued, the law uses an ‘assortment of representations and visualizations … to solve political problems internal to legal discourse’.14 Generally speaking, within the context of bodily integrity the law has maintained, and largely continues to maintain, a liberal conception of the body as a physical, individuated entity with distinct boundaries – an inside and outside – that occupies a bounded space along with other similarly situated entities. The body is a discrete, singular unit, delimited and enclosed by skin and composed of fleshy parts, external and internal, to this outer boundary. These parts are typically understood in terms of what can be physically entered, altered or removed. There are numerous ontological and political critiques that have been raised against such a conception of the body.15 My purpose here, however, is to advance an internal critique of how the concept of bodily integrity and, in turn, an RBI have typically been understood, so I will simply take this liberal conception of the body at face value and explore its implications for what follows with regard to how we should understand the normative implications of preserving or protecting the physical integrity of the body. Let us move now to the idea of ‘integrity’ in ‘bodily integrity’. Etymologically, integrity comes from ‘integer’, meaning complete or perfect.16 These notions comport with our common-sense idea of integrity that we find within dictionary definitions and everyday parlance. We speak of integrity as the state of being whole, unified or undivided. For instance, we might say that a country with coastal regions has reasons to take actions to mitigate climate change in order to protect its territorial integrity. We also speak of integrity as the state of being undiminished, unimpaired or lacking corruption. You find both senses in play when people invoke the idea of bodily integrity and both comport with the liberal conception of the body, in which a body is less unified or diminished when its outer border is transgressed. It is important to pay closer attention to how ideas of the ‘body’ and ‘integrity’ are advanced – in particular, the way in which representations of the body and different ways its physical integrity can be affected – because they play an important role in moral reasoning and legal doctrine about the subject. It is equally important to analyse how these impinge on the advancement of particular legal and policy outcomes in relations to different integrity-affecting interventions.

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On this issue, see, for instance, T. Regan, Defending Animal Rights (Chicago: University of Illinois Press, 2001) and T. Regan, Empty Cages: Facing the Challenge of Animal Rights (Lanham: Rowman & Littlefield, 2005). A. Hyde, Bodies of Law (Princeton: Princeton University Press, 1997), p. 84. See, for instance, the work of Mary Douglas, Purity and Danger: An Analysis of Concepts of Pollution and Taboo (London: Routledge, 1966). Integritās:  soundness, correctness, purity, whole, from Charlton Thomas Lewis, An Elementary Latin Dictionary (New York: American Book Company, 1890), p. 428.

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A further preliminary note before proceeding. It is worth acknowledging, but quickly setting aside, one objection that could be levied against the idea of bodily integrity. While most arguments in favour or against a principle of bodily integrity will be normative in nature, this objection is descriptive. Simply put, there can be no such thing as bodily integrity because, as a matter of biological fact, the human body – through its own physiological and biochemical processes – removes, alters and kills off various of its parts on its own. The human body is not a homogenous, whole or undivided entity. It is a collection of constituent parts, formed of bones, muscles, tissues and cells, that are themselves formed of molecular and atomic constituents, which are all constantly being altered (albeit at different rates). All of these biological materials have a finite life span; they die off and are replaced – with the exception of the lenses in your eyes. In a very strict sense, the human body does not maintain its own physical integrity. There is nothing, given current scientific limitations, that would allow us to keep our physical integrity. As such, the objection would run, it is nonsensical to think that there could be a right to keep the body intact since the idea of a body as perfect, undivided, lacking in corruption, etc. is a fiction. I think we should set the objection aside because, while I think there is something to it, it does not get to the heart of the matter. We still have the potential to live good and worthwhile lives despite the biological fact that our bodies are like Neurath’s boat – constantly being reconstructed at sea – while remaining in a non-trivial sense our bodies.17 Unlike Neurath’s boat, however, our concern about bodily integrity is not a worry about personal identity and our persistence through time given these physical changes. It is really not about integrity at all – it is about something else of value. So, then, how should we understand claims about the value of preserving or protecting bodily integrity? 28.2.1.2 Why Is Physical Integrity Valuable? There are two main ways in which the value of preserving or protecting bodily integrity have been expressed in the literature and jurisprudence: bodily integrity as either a capability or an interest. According to Martha Nussbaum, bodily integrity is a capability. Human capabilities are what allow persons the freedom to choose between different worthwhile forms of life. She maintains that possessing bodily integrity should be understood as ‘being able to move freely from place to place; having one’s bodily boundaries treated as sovereign, i.e. being able to be secure against assault, including sexual assault, child sexual abuse, and domestic violence; having opportunities for sexual satisfaction and for choice in matters of reproduction’.18 Admittedly, Nussbaum’s articulation of bodily integrity does not provide a definition of bodily integrity per se, but gives us examples of how exercising this capacity would allow us to function and how such functions would be valuable. Imbedded within Nussbaum’s articulation of bodily integrity, we also get what grounds a principle of preserving or protecting bodily integrity:  namely, it allows one’s bodily boundaries to be treated as sovereign. Another prominent view is that bodily integrity is an interest.19 An interest is a basic prerequisite for humans to lead a minimally worthwhile life. On such a view, bodily integrity could be considered an essential human interest and – like sovereignty in the case of the capabilities 17

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Otto Neurath famously compared human knowledge to a boat that has to be repaired at sea by exchanging the very beams and planks that constitute the ship. See, for instance, N. Cartwright et al., Otto Neurath: Philosophy Between Science and Politics (Cambridge: Cambridge University Press, 1996), pp. 89ff. M. Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge: Cambridge University Press, 2000), p. 78. See, for instance, J. Jarvis Thomson, The Realm of Rights (Cambridge, MA: Harvard University Press), p. 222.

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approach – would ground the justification for an RBI (for instance, a liberty interest, a privacy interest, etc.). Both are plausible ways in which to understand why physical integrity is valuable. Understanding bodily integrity as a capability or an interest would also naturally ground a rightsbased claim to the preservation or protection of bodily integrity on the basis that maintaining one’s physical integrity is instrumentally valuable for securing the necessary conditions of living a worthwhile life – which is a prominent view, though there are some who maintain that physical integrity is intrinsically valuable.20 Either way, an account of the value of physical integrity will play a role in the justificatory story of whether we have an RBI. 28.2.1.3 What Preserving or Protecting Physical Integrity Does Thus far, albeit in a rather concise way, I have clarified some questions about the origin and scope of the notion of bodily integrity and on what basis we might think bodily integrity is valuable. But how should this value – which will ground why a principle for the perseverance and protection of physical integrity would be justified – be realised? That is to say, on what basis should we understand what preserving or protecting bodily integrity is supposed to ‘do’? Within the literature and jurisprudence we find a number of different yet related claims. Consider a few prominent and influential articulations of what bodily integrity does. For instance, it is claimed that bodily integrity: ‘is a claim against the invasion of the body’;21 ‘[provides] protection against unwanted physical intrusion [and] safeguards the physical parameters of a person’;22 ‘creates an inviolable shield around the body through which nothing may enter nor be extracted’;23 ‘protects against intentional interference with one’s body, or certain kinds of such interference’;24 ‘[means] individuals are entitled to have their bodies protected from intrusion’;25 ‘[means] every human being of adult years and sound mind has a right to determine what shall be done with his own body’;26 ‘[means] every man’s person [is] sacred, [with] no other having a right to meddle with it, in any the slightest manner’.27 Within these various articulations we get the use of metaphors or narratives of shields and safeguards protecting against invasions, intrusions and interferences. There is, indeed, a great deal of agreement and overlap within these articulations, which we should perhaps not find surprising at this level of generality. Nevertheless, it quickly becomes evident that these claims about 20

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See S. Wilkinson and E. Garrard, ‘Bodily Integrity and the Sale of Human Organs’ (1996) 22 Journal of Medical Ethics 334 at 338; J. Horder, Homicide and the Politics of Law Reform (Oxford: Oxford University Press, 2012), pp. 143ff.); Jay M. Bernstein, Torture and Dignity: An Essay on Moral Injury (Chicago: University of Chicago Press, 2015), p. 144. T. M. Wilkinson, Ethics and the Acquisition of Organs (Oxford: Oxford University Press, 2011), p. 16. C. Neff, ‘Woman, Womb, and Bodily Integrity’ (1990) 3 Yale Journal of Law & Feminism 327 at 338. Ibid., 339–340. T. Douglas. ‘Criminal Rehabilitation through Medical Intervention: Moral Liability and the Right to Bodily Integrity’ (2014) 18 Journal of Ethics 101 at 106. Savell, ‘Sex and the Sacred’, 1123. Justice Cardozo in Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y. 1914), 93. W. Blackstone, Commentaries on the Laws of England:  A Facsimile of the First Edition of 1765–1769, vol. 3 (Chicago: University of Chicago Press, 1979), p. 120.

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the nature of bodily integrity are problematic. In fact, we should be critical of these articulations both for the presuppositions they contain as well as the implications of what perpetuating these presuppositions can have for how we might understand the scope and stringency of an RBI. Consider, for instance, a few problematic presuppositions that these articulations perpetuate. First, these articulations presuppose that transgressions of bodily integrity are undertaken by others against us. In constructing claims of bodily integrity solely in terms of bodily alterations caused by external agents, it potentially rules out or makes it difficult to compare a whole host of behaviours or practices that individuals undertake involving their own bodies that result in some kind of modification or alteration. Second, these articulations presuppose that the entity whose bodily integrity is being transgressed is a person, or at least an entity that is capable of forming conative states or giving consent. As such, it either rules out or provides less weight to the bodily integrity of human beings without capacity (e.g. babies, severely cognitively disabled persons, individuals in minimally conscious or non-conscious states and the dead). Third, these articulations presuppose that bodily integrity protects a singular, discreet individual from the outside world. Understanding bodily integrity in this way, however, makes it difficult to accommodate cases such as pregnancy or conjoined twins where the vital connections between two or more entities do not allow us to simply speak about a single body being protected from invasion. These articulations are also unclear about what is contained in this safeguard or shield of the body’s surface. For instance, in the case of prosthetic limbs, some of which can be permanently fused to existing body parts, would invasion or interference with the prosthesis count as transgressing bodily integrity in the same way as interference with an existing, original limb? Fourth, these articulations presuppose that bodily integrity is a negative consideration28 – that is to say, it only provides protection or preservation from outside intervention. It rules out or downgrades the possibility that it may be a positive consideration providing a sphere of freedom or choice about what a person can do to their own body, or an entitlement to claim that others should help them to alter their body as they wish. There is good reason for supposing, as Borgmann claims, that ‘this right encompasses not just the right to repel bodily intrusions but also the right to affirmative decision making about one’s body’.29 Fifth, these articulations also presuppose that bodily integrity is primarily about what happens to superficial or larger parts of the body, which are easily visible to the naked eye. Why, however, should we privilege only large parts of the body or visible marks made to it? A large reason for this is that the conceptions of ‘invasion’ or ‘interference’ used within these articulations are markedly underdeveloped. They presume that modes of invasion will be through the modification or alteration of the relatively large and visible parts of the body, such as when people talk about removing an organ or being vaccinated. It is the injection mark from the syringe on the skin or the scar from the scalpel where the kidney was cut out that provides evidence of the transgression of physical integrity. Such an understanding focuses on whether a body was touched, entered or had parts removed, and not whether it is in any sense intact, whole or uncorrupted. There are many ways in which we can modify or alter the body without it being invaded in the way that a syringe or scalpel does. Take, for instance, the inhalation of microscopic particles that affect one’s neural cells, or transcranial direct current stimulation that involves, as the name 28 29

Wilkinson, Ethics and the Acquisition of Organs, p. 16. C. Borgmann, ‘The Constitutionality of Government-Imposed Bodily Intrusions’ (2014) 4 University of Illinois Law Review 1059 at 1063.

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suggests, introducing electrical current to the brain through the skull. Both interventions leave no visible anatomical trace of their introduction or effect on the human body. With any concept used across different areas of law and public policy, it is natural to expect some variation in how a concept is framed or used. For instance, when bodily integrity is invoked in the context of constitutional law, the focus is primarily on state action towards an individual (e.g. parens patriae). When bodily integrity is invoked in the context of tort law, the focus is primarily on acts involving the body between private individuals (e.g. battery, trespass). When bodily integrity is invoked in the context of medical law, it is often used to underpin other normative requirements (e.g. informed consent). This kind of variation in framing or usage is not only predictable but not especially problematic – concepts such as bodily integrity may indeed be flexible enough to be able to swap out public versus private actors, different contexts, etc., yet still remain intact. When we start to look at claims about the RBI more closely, however, we begin to see further variation about the very grounds of the right itself. 28.2.2 A Right to Bodily Integrity There are, of course, many ways in which we can use or treat the human body that involves wrongdoing. The academic literature is full of arguments concerning the putative wrongness of, for instance, commodifying, exploiting or objectifying the human body.30 Different areas of law dictate the various forms of conduct involving the body that constitute public or private forms of wrongdoing. Attempting to articulate an RBI, however, presupposes that there is a separate and distinctive form of wrongdoing involving the human body, that is transgressing its physical integrity, which this right seeks to pick out from other forms of bodily wrongdoing. In the first part of this section, I  highlight some problematic features and assumptions associated with some prominent conceptions of how bodily integrity is understood. I raised some questions and concerns about the extent to which we can clearly demarcate the origin and limits of the concept as it has been generally articulated, especially in relation to being able to capture all of the relevant cases that may arise in connection with the physical integrity of the human body. In this part, though, I want to suggest that there are further problems to be examined in relation to different ways in which a principle preserving or protecting the physical integrity of the human body has been advanced in the form of an RBI – in particular, what is grounding this right and whether this grounding reflects a distinctive form of wrongdoing covered by the content of this right. I hope to be able to argue that, in fact, there is no RBI per se. Now, in some respects I  do have my work cut out for me. Despite some of the problems I raised earlier and some I will raise momentarily, it is surprising how many scholars, practitioners and policy-makers so confidently assert the existence and importance of an RBI – and think the scope, strength and application conditions of such a right are relatively uncontroversial. Consider, for instance, some of the following claims: ‘The right to bodily integrity … is almost entirely uncontroversial and often considered of great weight.’31 ‘The integrity of an individual’s person is a cherished value of our society.’32 30

31 32

See e.g. M. Nussbaum, ‘Objectification’ (1995) 24 Philosophy and Public Affairs 249; M. J. Radin, Contested Commodities (Cambridge, MA: Harvard University Press, 1996); S. Wilkinson, Bodies for Sale: Ethics and Exploitation in the Human Body Trade (London: Routledge, 2003). Wilkinson, Bodies for Sale, p. 16. Schmerber v. California, 384 US 757, 772 (1966).

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‘The fundamental principle, plain and incontestable, is that every person’s body is inviolate.’33 ‘The common law right not to have our bodies touched or invaded … is so well established that most of us take its existence for granted.’34 ‘No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.’35 ‘[T]he right to bodily integrity is the cornerstone of all other liberties.’36 So why might we think that we have an RBI? As we saw before with the different articulations of the concept of bodily integrity, claims are made to the effect that it is because we value the preservation or protection of an individual’s physical integrity. And why do we value bodily integrity? Because there is value in resisting or preventing intrusions into our bodies. And why do we value the prevention of such intrusions? It is this question that allows us to get to the heart of the claim underpinning an RBI – and one that is rarely asked and interrogated with sufficient rigour and precision. I think part of the reason for this stems from the fact that many of our intuitions about cases involving bodily integrity are shared. Of course it would be immoral/illegal to pick someone off the street and remove his kidney in order to save someone else’s dying daughter. Of course it would be immoral/illegal to take that same little girl and remove her external genitalia as a cultural practice. But when we start to look to cases where there is no clear agreement and people need to articulate and defend why confiscating organs or female genital alteration is wrong on the basis of its transgression of bodily integrity, we begin to see there are different justifications being advanced and widespread disagreement as to what grounds an RBI. This disagreement is not merely conceptual; it has important practical consequences. Jurists, policy-makers and ethicists operating with different conceptions of bodily integrity and groundings for the RBI pick out different modes of intervention as illegitimate, and arrive at different conclusions as to which interventions count as transgressing bodily integrity and which considerations might make such transgressions justifiable, among other things. 28.2.2.1 The Grounds of a Right to Bodily Integrity Not only is it easy to find references to a principle preserving or protecting the physical integrity of the human body – most often in the form an RBI – within the academic literature and jurisprudence, it is also easy to find different, competing accounts of what normative consideration underpins such a right. One can find various claims that an RBI is predicated on everything from sovereignty (which includes personal autonomy and self-determination), ownership, dignity, security and privacy to well-being. I believe there are different explanations for why we see such a diversity of justifications. Sometimes it is the conception of the body one is working with that heavily shapes how one understands the RBI. For instance, if one is working from the premise that the human body is property, it is understandable why one might seek to ground the RBI and explain the wrongness of transgressing bodily integrity in terms of ownership. Other times, it is the conception of rights that one is working with that influences their justification. For instance, if one is a dignitarian about rights and maintains that all rights are justified in virtue of protecting human dignity, 33 34 35 36

Collins v. Wilcock [1984] 1 WLR 1172 at 1177. Borgmann, ‘The Constitutionality of Government-Imposed Bodily Intrusions’, 1061. Union Pacific Railway Co. v. Botsford 141 US 250 (1891), 251. Neff, ‘Woman, Womb, and Bodily Integrity’, 328.

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it is understandable why one might seek to ground the RBI and explain the wrongness of transgressing bodily integrity in terms of dignity. We can also see, for instance, within the context of constitutional law, how different jurisdictions have had their understanding of the RBI shaped by their respective constitutional discourses: within the USA bodily integrity is understood in terms of privacy,37 within Germany in terms of self-determination,38 within South Africa in terms of dignity39 and within Canada in terms of security.40 There is no reason to think that such interpretive differences will not be found in understanding the RBI as a human right. Whatever the cause of this state of affairs, the concept of bodily integrity and a right to protect it are being interpreted and applied in different and divergent ways. The pervasive disagreement over the right’s grounding and the resulting normative and practical implications raise problems for proponents who want to maintain that an RBI is well defined, robust and justified. 28.2.2.2 A Dilemma? Given the marked divergence and difference surrounding the concept that forms the content of an RBI, its proponents look to be faced with a dilemma: either this disagreement results from the fact that bodily integrity is an essentially contested concept or there really is no single idea of bodily integrity. Perhaps it is not quite a full-fledged dilemma in the proper philosophical sense, in that there may be other explanations for this disagreement and it need not be dissolved or evaded like traditional philosophical dilemmas. But we have a similar structure, in which we have a problem (i.e. wide and persistent disagreement over the grounding of the right) that can be addressed in two ways, neither of which is unambiguously acceptable or preferable given the conceptual and doctrinal problems associated with them. Of those two options, I will suggest that proponents of an RBI should bite the bullet and go with the second option as the better course of action. While this would result in a piecemeal and perhaps diminished account of bodily integrity, it still allows for the preservation of the essence of what bodily rights seek to protect. Option 1: Is Bodily Integrity an Essentially Contested Concept? The first option for proponents would be to maintain that bodily integrity is an essentially contested concept. According to W.  B. Gallie, an essentially contested concept is a concept that has a shared meaning, but there is irreconcilable disagreement on common and stable criteria of its application.41 For instance, while we might possess a shared meaning of ‘justice’, we cannot agree about the best way to bring justice about.42 Perhaps the same is true for bodily integrity? If proponents pursue this option, it provides not only an explanation of the disagreement but an excuse for why we have not reached and will never reach agreement on the grounds of the right. If the concept of bodily integrity is an essentially contested concept, then we will never be 37 38 39

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Shaman, Equality and Liberty in the Golden Age of State Constitutional Law, chapter 8. Art. 2(2) German Constitution; see also BGH, judgment, 28 November 1957, NJW 1958, 267 (Myom judgment). Dawood v. Minister of Home Affairs [2000] 5 Law Reports of the Commonwealth 147, 2000 (3) SA 936 (CC). O’Regan J, at para. 35, maintained that: ‘dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected. In many cases, however, where the value of human dignity is offended, the primary constitutional breach occasioned may be of a more specific right such as the right to bodily integrity.’ The Canadian Charter of Rights and Freedoms, Section 7. See also Rodriguez v. British Columbia (Attorney General) [1993] 3 SCR 519. W. B. Gallie, ‘Essentially Contested Concepts’ (1956) 56 Proceedings of the Aristotelian Society 167. On Gallie’s view (ibid. at 169), we have an essentially contested concept when its ‘proper use … inevitably involves endless disputes about [its] proper uses on the part of [its] users’.

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able to settle on shared grounds on the criteria of application for bodily integrity when it comes to a right protecting it. We should reconcile ourselves to the fact that no amount of philosophical or doctrinal grounds-keeping to clean up imprecision, ignorance or improved elucidation of necessary and sufficient conditions will settle these debates. As such, the concept of bodily integrity and what grounds a right to it are always open to contestation and dispute. I will not seek to establish here whether or not bodily integrity is, in fact, an essentially contested concept. Instead, I  think it is more profitable to ask whether there would be any benefit or costs for proponents to maintain that it is an essentially contested concept. As noted above, one benefit may be that it helps to explain the nature of theoretical disagreement that exists. Another benefit may be that the disagreement over meaning – as well as different and maybe even incompatible conclusions – need not preclude its continued use in our moral and legal deliberations. If bodily integrity is essentially contested, we should not expect a singular justification or consistent conclusions. This option has conceptual and doctrinal problems. There are traditional worries that its essential contestation provides a threat to the stability, certainty, predictability and consistency we would want in legal doctrine. It also gives us less reason for thinking that continued efforts would lead to moral and legal progress towards a more refined and better understanding. In short, it does not appear promising that understanding bodily integrity or a right to it in terms of essential contestability will resolve disagreement or result in better decisions on which interventions should be allowed or prohibited. Perhaps it also risks leaving us with a cynical view where proponents – with their own favoured conception of bodily integrity or how the right is to be grounded – just attempt to push for their own grounding value or theory of rights in advancing an RBI if there could never be agreement on its criteria of application by virtue of its essential contestation. Option 2:  Is Bodily Integrity a Single Idea? With the first option we began with the idea of bodily integrity as a single notion whose grounding had a number of different potential instantiations (sovereignty, dignity, privacy, etc.) and considered whether it was beneficial to understand the irreconcilable disagreement in terms of essential contestation. With the second option we start with the idea that bodily integrity might be more than one notion, with each different instantiation being reflected in its different uses. In taking this option, we can explain the divergence and difference in terms of conceptual confusion. While we are all using the term ‘bodily integrity’, we are actually referring to different concepts. For instance, when you say ‘bodily integrity’ you really mean ‘bodily autonomy’, whereas when I use the term ‘bodily integrity’ I really mean ‘bodily dignity’. In this case, the existing disagreement is not really about competing conceptions of a single concept. This would also explain why there appeared to be multiple justifications related to the RBI. People were trying to cram all of the various grounds of different bodily rights into a single right – an RBI – when actually those competing justifications are best understood as individual and independent grounds for a series of rights involving the human body. On this view, there would be no single RBI in play but a series of rights concerning the body, such as bodily autonomy, bodily privacy, bodily dignity, bodily well-being, etc. Accordingly, there is no RBI per se, but a collection of bodily rights that seek to preserve or protect different aspects of the body that are related but not identical to each other. One way to understand this option would be akin to how we understand property as a bundle of rights.43 On this view, 43

See United States v. Craft, 535 US 274, 278 (2002) – a ‘bundle of sticks’ as a ‘collection of individual rights which, in certain combinations, constitute property’. See also T. Honoré, ‘Ownership’, in Making Law Bind: Essays Legal and

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bodily integrity is most properly viewed, metaphorically, as a ‘bundle of sticks’ with each stick representing an individual bodily right. We could say someone has a so-called RBI in a manner of speaking insofar as they possess a set of rights related to their body. But on this view, the RBI is merely a metaphorical construction that provides a convenient conversational shorthand – the normative action, so to speak, is to be found completely within the different bodily rights themselves and how they relate to each other. There are some apparent benefits with this option. Conceptually, it provides a more sophisticated basis on which to explain the complexity of bodily integrity through its isolated component parts. Disaggregating bodily integrity into its separate component parts could allow for more clarity about the relative weights of the respective values, as well as potentially helping to illuminate the dispute and conflicting conclusions in particular cases. For instance, we need not presuppose that potential cases where consent is not relevant for explaining a wrongful way to treat the body fall under the idea of bodily integrity, i.e. cases in which the invasion or alteration of the body is still wrong despite consent to it being given. In such cases some bodily right other than bodily autonomy would be in play. It may also allow for a better account of who can be a bearer of bodily rights – it is not an all-ornothing phenomenon. For instance, perhaps only persons have a right to bodily autonomy but all humans have bodily dignity, perhaps even dead humans. An account of bodily rights-holders would be articulated right by right – there would be no presumption that all entities would have to possess all the bodily rights at the same time, or even that all bodily rights would have to carry the same weight or have the same defeasibility conditions. This option also comes with some conceptual and doctrinal problems. Bodily integrity would no longer be a single, unified idea. Each bodily right would have to be developed further: how each right relates to each other, how they are balanced against other competing considerations, etc. This could change how we have approached evaluating the permissibility of many different integrity-affecting interventions completely. It is also the case that the concepts underlying these different bodily rights, like autonomy, privacy and dignity, are themselves contested, and potentially essentially contested.44 So even understanding the right in this way may not prevent some of the earlier problems with disagreement and consistency.

28.3 What’s New with the Right to Bodily Integrity? It is evident that, despite some of the legal and philosophical issues involved in the existence, application and interpretation of an RBI, it remains a popular and oft-cited right. In particular, it is gaining ever greater currency among activists who want to use the right to prohibit or severely curtail the incidence of different bodily interventions. What is new with the RBI, however, is its political use and deployment to gain more public acceptance by seeking to advance a much more specified version of the right that focuses on an emotive and controversial part of the human body: the genitals. Activists have primarily sought to articulate and defend a right to genital integrity (or a right to genital autonomy) as its own derivative and specified version of an RBI. This ‘new right’ is predominantly deployed with respect to medical and cultural practices

44

Philosophical (Oxford: Clarendon Press, 1987); D. B. Klein and J. Robinson, ‘Property: A Bundle of Rights? Prologue to the Property Symposium’ (2011) 8 Econ Journal Watch 193; K. J. Vandevelde, ‘The New Property of the Nineteenth Century:  The Development of the Modern Concept of Property’ (1980) 29 Buffalo Law Review 325; J. B. Baron, ‘Rescuing the Bundle of Rights Metaphor in Property Law’ (2014) 82 University of Cincinnati Law Review 57 at 58–67. See, for example, P.-A. Rodriguez, ‘Human Dignity as an Essentially Contested Concept’ (2015) 28 Cambridge Review of International Affairs 743.

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concerning alteration of the genitals, particularly in children, such as male circumcision, female genital cutting and gender affirmation surgery for intersex and transgender adolescents. In some respects there is nothing new in this move towards specifying a more particular instance of the RBI. The previous instantiation of the right was more than able to apply to alterations of this one part of the human body. If one thought that practices, such as altering the genitals of infant girls for cultural reasons, were a violation of an RBI, for instance, then moving towards a right to genital integrity or autonomy would not make any theoretical or practical difference in how we should respond to such issues. In other respects, however, the move to focus on only one part of the body, first, and the emphasis on autonomy, second, does make the justification and application of such a right potentially clearer and less contestable than the original RBI. As such, through restricting the nature and focus of the right to only (or primarily) autonomous choices relating to genitals, it avoids conflicting interpretations about the content of the right and contexts in which its scope of application is relevant. Should we think there is a sound basis for attempting to understand and make greater use of this ‘new right’ within human rights law? Some proponents have sought to use human rights documents concerning prohibition of acts of violence or abuse against children as further evidence of a specified RBI focused on practices involving altering their genitals.45 This, of course, problematically presupposes that parents voluntarily deciding that a practice is acceptable for their child, such as infant male circumcision, should be understood as violence or abuse. Not all integrity-affecting interventions have to include violence or be explained as acts of abuse, so proponents making such claims would need to argue why and in what instances such practices should automatically be thought to be violent or abusive. We would need some definition or criteria that we could apply to different interventions or practices to determine which ones constitute violence or abuse. Such definition or criteria would need to allow us, at minimum, to distinguish between therapeutic versus non-therapeutic reasons for altering genitals – and, potentially, for providing an allowance for certain forms of genital alteration for faith groups. Of course, not all activists who have been pushing a right to genital integrity or autonomy agree on the limits or exceptions to this right. Some would allow, for instance, infant male circumcision for therapeutic reasons only and others would allow infant male circumcision in cases of therapeutic and religious reasons only. While such a right, under such views, would still prohibit infant male circumcision for social or cultural reasons, we would still need a definition or criteria that would allow us to distinguish which forms would be justifiable, and if not, whether it would be on the basis of the intervention constituting violence, abuse or some other consideration. A real and substantive debate continues to exist as to whether infant male circumcision is incompatible with bodily or genital integrity, or whether the practice should always (or in some instances) constitute a human rights violation.46 Any activists, scholars or jurists 45

46

For instance, Art. 3 of the the United Nations Convention on the Rights of the Child, 20 November 1989, in force 2  September 1990, 1577 UNTS 3, states that ‘whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’, and in Art. 19 states are required to take ‘all appropriate … measures to protect the child from all forms of physical or mental violence, injury or abuse … while in the care of parent(s), legal guardian(s) or any other person who has the care of the child’. Also, the Council of Europe’s Strategy for the Rights of the Child (2016–2021) (2016), available at:  https://edoc.coe.int/en/children-s-rights/7207-council-of-europe-strategy-for-the-rights-of-the-child-20162021.html, has one of its primary objectives to be ‘Eliminating all forms of violence against children’. See, for instance, G. C. Denniston, F. Hodges and M. Fayre Milos (eds.), Circumcision and Human Rights (Dordrecht: Springer, 2009); R. Cruz, L. B. Glick and J. W. Travis, ‘Circumcision as Human-Rights Violation: Assessing Benatar and Benatar’ (2010) 3 American Journal of Bioethics 19; D. L. DeLaet, ‘Genital Autonomy, Children’s Rights, and Competing Rights Claims in International Human Rights’ (2012) 20 International Journal of Children’s Rights

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defending this more narrow and specified version of the RBI must still undertake the necessary conceptual, justificatory and political work needed to sharpen and legitimate the content and scope of this right.

28.4 Conclusion While people often invoke the RBI uncritically when opposing certain behaviour or practices, I have sought to outline some of the various ways in which the origin and application of the concept of bodily integrity have been unclear and how the justification of an RBI has been subject to wide disagreement. In the face of this divergence and difference, I have suggested two possible options for proponents of an RBI – either accept that bodily integrity is an essentially contested concept or that there is really no such thing as bodily integrity per se. Both options, I also suggested, come with their own conceptual and doctrinal concerns and limits. I  maintained that, of these two options, the most promising way forward would likely be for proponents to develop independent accounts of different bodily rights. This would mean that transgressing bodily integrity is likely best not thought about as a distinctive form of wrongdoing involving the human body. These cases of using or treating the body in a wrongful way are really just the same long-standing forms of wrongdoing we are already familiar with – failing to treat someone as autonomous, failing to respect someone’s dignity, failing to protect their privacy, etc. This recognition would represent something new within the human right to bodily integrity, and would have a fundamental impact on providing a robust clarification and defence of the content, scope, strength, defeasibility and application condition of different bodily rights, as well as consistency as to which behaviours or practices should constitute a violation of different bodily rights. Yet there is still much work to be done. In this chapter I have only outlined particular issues and problems, and particular promising avenues for future directions. Moreover, even if I am correct that there is no single RBI but a collection of bodily rights, there is still a need for proponents of bodily rights to articulate and defend each of those rights. The nature of those rights  – their origin, scope, strength, defeasibility, applicability  – are themselves subject to debate and disagreement, and should require us to revisit interventions and practices that we may have thought to have been previously settled by original ideas about bodily integrity. As we have seen with how people have attempted to develop and defend a new, more specified bodily right, such as a right to genital integrity or genital autonomy, these challenges persist for them, not only in terms of being able to defend the view of which behaviours and practices constitute infringements or violations of bodily human rights but also in defending what forms of regulatory responses should follow as a result.

554; M. Benatar and D. Benatar, ‘Between Prophylaxis and Child Abuse: The Ethics of Neonatal Male Circumcision’ (2003) 3 American Journal of Bioethics 35; J. Mazor, ‘The Child’s Interests and the Case for the Permissibility of Male Infant Circumcision’ (2013) 39 Journal of Medical Ethics 421; J. S. Svoboda, ‘Circumcision of male infants as a human rights violation’ (2013) 39 Journal of Medical Ethics 469; K. Möller, ‘Ritual Male Circumcision and Parental Authority’ (2017) 8 Jurisprudence 461; J. Mazor, ‘On the Child’s Right to Bodily Integrity: When Is the Right Infringed?’ The Journal of Medicine & Philosophy (forthcoming); J. Mazor, ‘On the Strength of Children’s Right to Bodily Integrity: The Case of Circumcision’ (2019) 36(1) Journal of Applied Philosophy 1.

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29 From Bodily Rights to Personal Rights Thomas Douglas

The right to bodily integrity (RBI) may seem inapt for inclusion in this volume, which is supposed to address new human rights, for as A. M. Viens notes, the RBI is a long-standing fixture in the philosophical and legal discussion of rights. However, Viens does, I think, make a good case for the right’s inclusion here. Not only does he note the increasing recognition of a new right to genital integrity derived from the more general RBI, he also argues for a new conceptualisation of the RBI itself: he argues that we ought to decompose the RBI into several constituent rights, delineated according to the different values from which they derive – rights to bodily autonomy, bodily dignity, bodily ownership, well-being, and so on. As he writes: On this view, there would be no single RBI in play but a series of rights concerning the body, such as bodily autonomy, bodily privacy, bodily dignity, bodily well-being, etc. Accordingly, there is no RBI per se, but a collection of bodily rights that seek to preserve or protect different aspects of the body that are related but not identical to each other. One way to understand this option would be akin to how we understand property as a bundle of rights. On this view, bodily integrity is most properly viewed, metaphorically, as a ‘bundle of sticks’ with each stick representing an individual bodily right. We could say someone has a so-called RBI in a manner of speaking insofar as they possess a set of rights related to their body.1

The constituent rights that make up this bundle would, Viens suggests, differ from one another not only in their justificatory source, but also in their content:  they would protect against different kinds of bodily interference and, in some cases, bodily neglect. The RBI would then be understood simply as the conjunction of these constituent rights. Viens does not himself claim any great novelty for his way of conceptualising the RBI.2 However, in this commentary I want to suggest that he in fact understates the novelty of his approach. I will argue that at least three of the ‘constituent’ rights mentioned by Viens – those deriving from ownership, autonomy and privacy  – are more substantially different from the (traditionally understood) RBI than Viens acknowledges. Not only are they different from that right in that they are tied to particular justifying values and particular forms of bodily interference or neglect, they are also different in their boundaries. Whereas the protection provided by the (traditionally understood) RBI extends only to the boundary of the body, rights deriving from ownership, autonomy and privacy extend further; they protect against some interferences 1 2

A. M. Viens, in this volume, pp. 374f. Viens reserves the claim to novelty for the right to genital integrity, discussed in the penultimate section of his chapter.

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that are not interferences with the body, though they are interferences with the person. Given this, I will suggest that these rights are not aptly characterised as bodily rights at all. Rather, they should be conceived as personal rights that encompass both bodily and mental integrity. I first make this argument with respect to rights deriving from ownership. I then show how it can be extended to rights deriving from autonomy and privacy. Before commencing the argument, though, I briefly explain why I think it is an argument worth making.

29.1 The Significance of the Body The body is often treated as having a special moral – and indeed legal – significance, such that interfering with a person’s body is more problematic than interfering with her life in other ways, for example through altering her natural or social environment.3 This is easily seen within the sphere of criminal justice, where extreme forms of environmental interference – such as those entailed by incarceration – are widely accepted, yet interventions that invade the body – such as compulsory chemical castration or methadone treatment – are highly controversial.4 A similar situation obtains in public health. In the context of pandemic control, quarantine  – a very restrictive external intervention – is often thought more defensible than, for example, compulsory injections of antibiotics or vaccines. This special significance given to the body makes sense if we accept that people possess rights against bodily interference and that we possess no similarly strong rights against other forms of interference. My argument below casts doubt on this view and thus undermines one way of justifying the special significance of the body.5 I argue that at least some of our rights that protect against bodily interference or neglect – those deriving from ownership, autonomy and privacy – provide equally strong protection that extends beyond the body too. Viens concedes that, in treating the right to bodily integrity as a cluster of heterogenous constituent rights, he is offering ‘a piecemeal and perhaps diminished account of bodily integrity’.6 However, he suggests that his account nevertheless allows ‘for the preservation of the essence of what bodily rights seek to protect’.7 I will be seeking to cast doubt on this latter view, since I think that part of this essence that bodily rights seek to protect is the special significance of the body.8 Throughout, I focus on moral rather than legal rights, since legal rights lie beyond my sphere of competence, but let me briefly comment on the possible legal implications of my argument. Does my argument imply that the law should reject bodily rights in favour of personal rights? Does it imply that the law should confer no special legal significance on the body? The answer is not straightforward, for there can be reasons for recognising legal rights that do not correspond 3

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6 7 8

For a judicial expression of this view, see R (on the application of Justin West) v. The Parole Board [2002] EWCA Civ 1641; [2003] 1 W.L.R. 705 at 49, per Hale LJ in her dissenting judgment. See, for example, chapters by C. Bennett, E. Shaw, J. C. Bublitz, and E. McTernan in D. Birks and T. Douglas (eds.), Treatment for Crime:  Philosophical Essays on Neurointerventions in Criminal Justice, (Oxford:  Oxford University Press, 2018). My argument here parallels one made by J. Anderson in his ‘Neuro-Prosthetics, the Extended Mind, and Respect for Persons with Disability’, in M. Düwell, C. Rehmann-Sutter and D. Mieth (eds.), The Contingent Nature of Life: Bioethics and Limits of Human Existence (Heidelberg: Springer, 2008). Anderson’s argument against the special moral significance of the boundaries of the body is more general than mine: it does not focus specifically on moral rights. Viens, in this volume, p. 373. Ibid., p. 373. I say that my argument casts doubt on the view, rather than being inconsistent with it, since it is possible that some of the other bodily rights that Viens’ mentions – i.e. those not deriving from ownership, autonomy and privacy – do confer special significance on the body. I do not think that they do, but I cannot argue this here.

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to moral rights. I am not convinced that a patent-holder possesses a moral right to extract monopoly profits from her invention, but there may still be economic reasons to grant her such a legal right. Similarly, there may be pragmatic reasons to confer legal rights that provide specific protection to the body. However, one reason – and, in my view, the usual reason – to recognise a legal right is that there is an underlying moral right. Thus, if there are no moral rights that specifically protect the body – as I believe Viens’ argument implies – this undermines one possible reason for conferring legal rights specific to the body.

29.2 Rights of Self- Ownership and the Extended Mind Viens suggests that we may have rights over our bodies that derive from ownership. But what is it, fundamentally, that we own? In virtue of our owning what do we have rights over our bodies? The standard answer, normally traced (at least) to John Locke, invokes our ownership of our selves or our persons (I take the two to be equivalent) – our rights of self-ownership. It might be thought that, since our selves clearly include our bodies, these rights will entail that we also have property rights over our bodies. And since property rights normally include rights against interference with our property, these property rights might seem to imply a right against bodily interference. Our selves do not only consist of our bodies, however. Our minds are certainly also part of our selves. Indeed, some of the most influential proponents of self-ownership made it clear that this entailed ownership of the mind as well as the body. J. S. Mill held that: ‘Over himself, over his own body and mind, the individual is sovereign’.9 For Locke, there was even a sense in which ownership of the mind was primary, for he thought that we originally acquire ownership of our selves through the mental action of taking responsibility for our actions.10 Of course, there are large philosophical disagreements concerning the relationship between mind and body, and these may have implications for how we should think about rights of selfownership. On some views – physicalist views – our minds are just part of our bodies; our minds are, or can be reduced to, our brains, or parts of our brains.11 But on other views, minds are not merely body parts. For example, on one widely held view in philosophy, our minds are distinct from, though wholly determined by, our brain states, in much the same way that a statue is distinct from, though wholly determined by, the lump of clay from which it has been sculpted. On this view, our minds emerge from our brains. On another view, they emerge not only from our brains but also from certain external objects.12 Indeed, according to the extended mind thesis, these external objects that support our cognition stand in the same relation to our minds as do our brain states.13 On one influential formulation of this view, due to Neil Levy: the mind is not wholly contained within the skull … but instead spills into the world. [It] should be understood as the set of mechanisms and resources with which we think, and that set is not limited to the internal resources made up of neurons and neurotransmitters. Instead, it includes 9 10 11

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J. S. Mill, On Liberty, ed. by D. Spitz (Toronto: W. W. Norton, [1895] 1975), p. 11. G. Herbert, A Philosophical History of Rights (Abingdon and New York: Routledge, 2017), p. 119. For classic statements of the view, see U. T. Place, ‘Is Consciousness a Brain Process?’ (1956) 47 British Journal of Psychology 44; H. Feigl, ‘The “Mental” and the “Physical” ’, in H. Feigl, M. Scriven and G. Maxwell (eds.), Concepts, Theories and the Mind-Body Problem, Minnesota Studies in the Philosophy of Science, vol. II (Minneapolis: University of Minnesota Press, 1958); D. Lewis, ‘An Argument for the Identity Theory’ (1966) 63 Journal of Philosophy 17. Both of these views are variants of ‘emergentism’. For a classic statement of this view, see C. D. Broad, The Mind and Its Place in Nature (London: Routledge and Kegan Paul, 1925). A. Clark and D. Chalmers, ‘The Extended Mind’ (1998) 58 Analysis 7.

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the set of tools we have developed for ourselves – our calculators, our books, even our fingers when we use them to count.14

If the extended mind thesis holds, then there is a straightforward sense in which, if someone interferes with my smartphone or diary, she interferes with my mind, and thus my self, and thus infringes my rights of self-ownership.15 This is true even though no bodily interference is involved. Interfering with my body becomes just one among other ways in which a person can interfere with my self. Thus, we see that – on the extended mind thesis – the protection provided by rights of self-ownership extends beyond the boundaries of the body.

29.3 Rights of Self- Ownership and the Non- extended Mind In fact, it is possible to generate a similar result even if the extended mind thesis does not hold. Consider the view, mentioned above, that the mind is distinct from but wholly determined by our brain states. Or consider the physicalist view that the mind is just (part of) the brain. On these views, anything that affects our minds must also affect our brains and thus our bodies; the only way to induce a change to someone’s mental states is to induce a change to their brain states. It might therefore seem that any sort of mental interference will, on this view, also involve bodily interference. Thus, we can capture all interference with the self through the concept of interference with the body. A difficulty with this view, however, is that it is doubtful that all interventions that affect the body involve bodily interference. On the views about the relationship between mind and brain that I am currently assuming, everything that influences the mind must also influence the brain and thus the body – it must cause some alteration to bodily states or processes. But something can influence the body without interfering with it, where that is taken to imply that the right to bodily integrity is implicated. By breathing out carbon dioxide molecules, we influence the bodily states of others in the same room, but it is not clear that we interfere with their bodies. Interference may require, for example, that the influence be intentional, that it meet some threshold level of significance, or that it be unwanted. Similarly, something can influence the mind without interfering with it. Interference requires more than mere influence. This leaves us scope to hold that something could influence both the body and the mind, but interfere only with the mind, and indeed that seems a plausible thing to say about certain interventions. Consider historical forms of brainwashing, such as hypnosis and aversion therapy. These interventions clearly interfere with the mind and thus the self. They thus plausibly infringe rights of self-ownership. But do they also interfere with the body? To the extent that (1) these interventions affect a person’s thoughts and feelings, and (2) those thoughts and feelings are fully determined by brain states, then these interventions must have an impact on the body: they must affect a person’s brain states. But even if we accept this, we may find it implausible to think that there is any bodily interference here. We may wish to say that brainwashing techniques influence both the brain and the mind, but interfere only with the mind, perhaps on the basis that only the mental effects are intended by the brainwasher. Perhaps to interfere with something we have to intentionally influence it. Even some interventions that exert a direct, biological effect 14 15

N. Levy, Neuroethics (Cambridge: Cambridge University Press, 2007), p. 29. I assume here that the self encompasses all of the mind. For a contrasting view, see T. Buller, ‘Neurotechnology, Invasiveness and the Extended Mind’ (2013) 6 Neuroethics 593. I agree with Buller that it is an open question whether the self encompasses all of the mind; I simply doubt that there is any persuasive positive argument for the view that it does not.

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on the brain may interfere with the mind, and thus the self, without interfering with the body. Consider transcranial direct current stimulation (tDCS). This involves subjecting the brain to a very small electric current using electrodes placed on the scalp. It can modulate various aspects of cognitive performance and in theory at least could induce particular thoughts and feelings. Now tDCS, if done without someone’s consent, would surely involve mental interference and be highly threatening to the self; if we have property rights over our selves, then tDCS surely infringes them. Yet it is less clear that tDCS involves interference with the body – indeed, it is often described as a ‘non-invasive’ form of brain stimulation, and we can imagine a version of tDCS that would not even involve bodily contact (suppose the electrodes could be kept a millimetre away from the scalp).16 Here again, as with brainwashing, there is clearly both mental and bodily influence. But again, one might be able to claim that there is mental but no bodily interference. For example, one might claim that the degree of physical influence of tDCS is too insignificant to qualify as interference, whereas the degree of mental influence is much more significant. (I should say that I am not personally persuaded by this suggestion; I think we should regard tDCS as invoking both mental and bodily interference. The physical impact of tDCS is of a ‘brute’ physical variety and seems to differ from paradigmatic forms of bodily interference – such as the performance of a surgical procedure on someone – chiefly in that the physical impact in tDCS occurs through diffuse and invisible means. It seems doubtful to me that its diffuseness or invisibility could prevent it from involving bodily interference, and I am thus tempted to the view that tDCS does involve bodily interference. My point here is just that there are live alternative views available; it is at least reasonable to hold that tDCS involves no bodily interference.) In both cases  – brainwashing and tDCS  – it seems possible to make sense of the thought that these interventions involve mental interference, and thus infringe rights of self-ownership, though they involve no bodily interference and thus do not implicate bodily rights.

29.4 Rights of Autonomy and Rights of Privacy I have been suggesting that rights of self-ownership protect against non-bodily forms of interference. I now want to suggest that a similar claim is true of two other kinds of rights mentioned by Viens – rights deriving from autonomy (henceforth simply ‘rights of autonomy’) and rights deriving from privacy (‘rights of privacy’). Viens suggests that the cluster of bodily rights that protect our bodies might include rights of autonomy and rights of privacy, but I will argue that there is no reason to think that there are rights of autonomy or rights of privacy that specifically protect the body: rights of autonomy and privacy that protect the body also protect us against some forms of treatment that do not implicate the body. Consider first autonomy. Autonomy is normally understood as requiring control over (or governance of) one’s life. If someone interferes with my body without my consent (or perhaps even merely develops the power to do so), they have interfered with my autonomy, because they have reduced the degree to which I control one aspect of my life: the state or functioning of my body. But there are questions about the scope of control that autonomy requires. Suppose my best friend falls head-over-heels in love and no longer has any time for me, with the result that I feel hurt and rejected. My friend has affected how my life goes and has plausibly diminished my 16

For a discussion of whether bodily touching is sufficient for infringing a legal right to bodily integrity, see J. Herring and J. Wall, ‘The Nature and Significance of the Right to Bodily Integrity’ (2017) 76 The Cambridge Law Journal 566 at 572.

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control over how it goes, but he has not interfered with my autonomy. The romantic life of my best friend simply does not fall within the scope of my autonomy, even when it affects me very much. What does lie within the scope of my autonomy? Over what must I  have control to have autonomy? The obvious and I think most plausible answer is that I must have control over my self. But this leads us back to the argument advanced in the preceding sections: my self includes not (only) my body, but (also) my mind. So any right to autonomy that I possess must surely protect my mind as well as my body. Yet there are many interventions that reduce my control over my mind without in any meaningful way reducing my control over my body. Subliminal imagery may induce mental states that I  cannot resist, and thus reduce my control over my mind, but we would not normally think that it reduces my bodily autonomy. Similar thoughts apply – and perhaps even more clearly – to rights of privacy. Privacy requires the absence of certain kinds of access or observation. It requires that others abstain from accessing or observing certain aspects of my life. Which aspects exactly? This is a difficult question, but it is surely clear that someone can invade my privacy without accessing or observing my body in any way: reading a person’s diary without their consent does not implicate their body, but it is a paradigmatic invasion of privacy, perhaps because reading someone’s diary involves (possibly indirectly) accessing their self. At the very least, privacy seems to extend to cover parts of the self that lie beyond the body. Thus, rights of privacy should protect not only against accessing or observing the body, but also against accessing and observing non-bodily aspects of the self.

29.5 Personal Rights Nothing I have said undermines Viens’ claim that we possess rights deriving from self-ownership, autonomy and privacy, and that these rights protect our bodies against certain ways of treating our bodies. However, if my argument is correct, these rights also protect us against interventions that do not implicate the body in any rights-relevant way, but do implicate the mind and thus the self. Moreover, there seems no reason to suppose that the mental protections provided by these rights are any weaker than the bodily protections.17 After all, ownership, autonomy and privacy of our minds are at least as important to most of us as ownership, autonomy and privacy of our bodies. So it seems arbitrary to pick out only the aspects of these rights that protect the body, as we do if we refer to them as bodily rights. Moreover, if my argument is sound, these rights will not be able to play the role that bodily rights have often been thought to play: the role of giving the body a special moral significance. My suggestion, then, is that we should think of these rights not as bodily rights at all, but as rights over the self or person – as personal rights. This, I think, would direct our attention to the important and neglected issue of the protection that they provide to the mind. While my above arguments suggest that the body does not deserve the prominent place that it has enjoyed in the philosophical rights discourse, they also suggest that there is a need for more attention to be paid to ways in which our rights protect our minds. This is a need that has been recognised in Article 3 of the Charter of Fundamental Rights of the European Union, which asserts a right

17

It may be that Viens would accept and welcome this implication of his view, for he concedes that ‘transgressing bodily integrity is likely best not thought about as a distinctive form or category of wrongdoing’ (Viens, in this volume, p. 377). However, he regards this concession as consistent with his view that his account of bodily rights preserves the essence of the RBI. This is where I disagree with him.

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to ‘integrity of the person’, glossed as a right to ‘physical and mental integrity’.18 It has also been recently highlighted by theorists of the law.19 However, the idea that we possess a moral right to mental integrity has little philosophical presence, leaving the corresponding legal right with weak philosophical foundations. Of course, my suggestion that the boundaries of the body have no special moral significance also has more direct, practical implications. For example, it suggests that we ought to reconsider our practice of preferring mental interference to bodily interference in fields such as public health, forensic psychiatry and criminal justice. It may be that mental interference is just as threatening to self-ownership, autonomy and privacy as is bodily interference, and to the extent that our rights derive from those values, it may involve equally serious rights infringements.

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Charter of Fundamental Rights of the European Union, Nizza, 7 December 2000, in force 1 December 2009, OJ 2012 No. C 326/2. See, for example, R. Merkel and J. C. Bublitz in their ‘Crimes Against Minds: On Mental Manipulations, Harms and a Human Right to Mental Self-Determination’ (2014) 8 Criminal Law and Philosophy 51; M. Ienca and R. Andorno, ‘Towards New Human Rights in the Age of Neuroscience and Neurotechnology’ (2017) 13 Life Sciences, Society and Policy 1. See also J. C. Bublitz, in this volume; S. Michalowski, in this volume.

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30 The Nascent Right to Psychological Integrity and Mental Self-Determination Jan-Christoph Bublitz

30.1 Introduction This chapter presents the case for recognising a slowly emerging human right that protects the human mind, the right to psychological or mental self-determination, along with some suggestions for a plausible construal. The human mind is an entity poorly protected by law and poorly understood by science: what it truly is, what it consists and what it is made of, the laws and dynamics by which it operates, and how it relates to the brain as its material substrate are among the last mysteries of science and metaphysics.1 People, however, are intimately familiar with many facets of their minds from personal experience, and they constantly interact with minds of others. In light of Descartes’ famous proposition cogito ergo sum, a thinking mind might well be the essence of being human. For legal purposes, a rough definition of the mind may suffice: it comprises all conscious and non-conscious mental states, events and processes, i.e. thoughts and beliefs, emotions and moods, as well as the underlying psychological mechanisms operating in the complex mental machinery.2 What is the legal status of the mind? What is the legal relation between a person and her own mind, and other persons’ minds? Neither human rights law nor domestic law provide straightforward answers. In fact, these questions are rarely posed in this general way. By contrast, legal systems say much about bodies. Detailed rules and doctrines define permissible conduct with one’s own body and bodies of others, including exceptional situations, from pregnancy over tattooing children to organ transplantation. These rules flow from, and draw limits to, the right to one’s body, an idea found by different names in many jurisdictions and human rights systems. Strikingly, no corresponding rules and doctrines over permissible ways to treat minds exist.3 1

2 3

Apart from the psy-sciences, philosophy of mind strives to shed light on the nature of the mind. For an introduction, see J. Kim, Philosophy of Mind, 3rd ed. (Boulder:  Westview Press, 2011); D. J. Chalmers, Philosophy of Mind: Classical and Contemporary Readings (Oxford: Oxford University Press, 2002); and T. Metzinger, The Ego Tunnel: The Science of the Mind and the Myth of the Self (New York: Basic Books, 2009). An intriguing debate left aside here concerns limits of the mind. Some authors suggest the mind extends to tools conducive to thinking: A. Clark and D. Chalmers, ‘The Extended Mind’ (1998) 58(1) Analysis 7. For legal implications, see M. J. Blitz, ‘Freedom of Thought for the Extended Mind: Cognitive Enhancement and the Constitution’ (2010) Wisconsin Law Review 1049. Henceforth, mental states, events and processes are summarily referred to as ‘mental states’ to avoid repetition. A comprehensive discussion of the legal status of the mind would require a systematic analysis of all norms pertaining to or affecting minds. A scholarly work of that magnitude exists neither for a specific jurisdiction, nor in a comparative perspective. Even a detailed analysis of the mind in international or human rights law exceeds the scope of this chapter, as the mind, by its nature, is affected by a great many norms. Nonetheless, a rough picture may suffice to substantiate the claim that the mind often enjoys only weak and indirect protection.

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What does contemporary human rights law say about the mind? At a quick glance: a right to mental self-determination is not recognised expressis verbis. However, parts have been recognised in the jurisprudence of the European Court of Human Rights (ECtHR) as ‘mental’ or ‘psychological integrity’ within the scope of Article 8 (private life) of the European Convention (ECHR)4. This jurisprudence is reflected in the Charter of Fundamental Rights of the European Union (CFR)5 which came into force in 2009. Article 3(1) explicitly guarantees the right to respect for ‘physical and mental integrity’. However, meaning, scope and limits of the right are largely undefined and left for courts and scholars to render more precise. In addition, the rights to freedom of thought, conscience, religion and opinion, among the oldest inhabitants in the human rights universe, protect parts of mental self-determination as their inner sides (fora interna). However, this protection has not played an important role in human rights litigation, nor in legal scholarship, and is largely empty in non-religious and nonconscientious matters.6 Accordingly, cum grano salis, no human right effectively protects the mind at present, but some (not well-developed) anchors exist upon which a mind-protecting right can be established. Examining specific national systems would surely reveal more nuanced pictures. Broadly speaking, most seem hesitant, even resistant, to protect the mind comprehensively. Here are some observations. Some national constitutions secure mental integrity, but the effects of these provisions seem marginal. Some guarantee a right to health, which may include mental health.7 At the subconstitutional level, the weak protection of the mind is typically reflected in controversies as to whether emotional distress or anxiety can provide grounds for tort claims, or whether criminal offences cover infliction of ‘purely psychological’ harms.8 So while mental harms are sometimes legally relevant, jurisdictions draw many restrictions. Some have introduced narrowly tailored offences such as stalking for exceptionally severe attacks on minds.9 Furthermore, some offences capture some manipulative influences on decision-making (fraud, misleading information). But they frequently fail to capture manipulations more subtle than trickery, e.g. 4

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Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, in force 3 September 1953, 213 UNTS 221. Charter of Fundamental Rights of the European Union, Nizza, 7 December 2000, in force 1 December 2009, OJ 2012 No. C 326/2. A good analysis of forum internum protection is P. Taylor, Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge: Cambridge University Press, 2005), chapters 2 and 3. Although the claim ‘no health without mental health’ may appear evident, the protection of mental health as part of a right to health is not. For instance, the Federal Constitutional Court of Germany has repeatedly reserved judgment as to whether Art. 2(2) of the German Basic Law (Grundgesetz) (right to health) includes mental health. Constitutional Court of Germany, judgment, 14 January 1981, 1 BvR 612/72 (Fluglärm 1), BVerfGE 56, 54 (75). Regarding US tort law, B. Grey, ‘Neuroscience and Emotional Harm in Tort Law:  Rethinking the American Approach to Free-Standing Emotional Distress Claims’, in M. Freeman (ed.), Law and Neuroscience: Current Legal Issues (Oxford: Oxford University Press, 2011) speaks about emotional harm as a ‘second class citizen’. For European tort law see C. van Dam (ed.), European Tort Law, 2nd ed. (Oxford: Oxford University Press, 2013), pp. 714. For German law, see C. Bublitz, ‘If Man’s True Palace Is His Mind, What’s Its Adequate Protection? Mental SelfDetermination and Legal Limits for Mind-Interventions’, in L. Klaming and N. van den Berg (eds.), Technologies on the Stand: Legal and Ethical Questions in Neuroscience and Robotics (Nijmegen: Wolf, 2011), p. 89, and C. Bublitz and R. Merkel, ‘Crimes against Minds: On Mental Manipulations, Harms, and a Human Right to Mental SelfDetermination’ (2014) Criminal law and Philosophy 51 for a proposal of a novel criminal offence. H. Teff, Causing Psychiatric and Emotional Harm:  Reshaping the Boundaries of Legal Liability (Oxford:  Bloomsbury Publishing, 2008) is one of the few detailed studies on emotional harm in common law. Note that remedies for mental harms consequential on physical harm are less controversial, but present interest lies in stand-alone protections of minds. For instance, s76 of the UK Serious Crime Act 2015 penalises ‘controlling and coercive behaviour in intimate or family relationships’ that causes, inter alia, ‘serious alarm or distress’ in victims (4b). S238 of the German Criminal Code penalises severe forms of stalking.

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those exploiting cognitive weaknesses (e.g. Cambridge Analytica targeting people with messages that were finely but clandestinely crafted to appeal to their personalities, as revealed on social media).10 Broader mind-protecting provisions are regularly absent or poorly defined. Against this backdrop, this chapter wishes to stimulate the idea that the mind be conceived as an entity worthy of full human rights protection. The key notion to guide the legal relation between a person and her mind should be mental self-determination  – in essence:  the right to self-determine what is in and on one’s mind. First and foremost, it consists of claims against others to not-interfere with minds of right holders, by either factually altering minds or by imposing legal duties pertaining to them.11 Section 30.2 addresses the need for such a right and Section 30.3 explores some objections to it. Some anchor points of the right in current law, along with some suggestions for its construal, are then sketched in Section 30.4. Section 30.5 reflects on whether mental self-determination is a novel human right.

30.2 Is There a Need for a Mind- protecting Right? What motivates this right – is there a need for it? Here are some preliminary answers. People change each other’s minds (and brains) all the time. Accordingly, states, governments and private actors intervene in the minds of citizens in countless daily instances. Unless these interventions happen to interfere with other rights such as bodily integrity, they are, by and large, no concern for the law. How people change minds is not a legal topic in its own right; current protection of the mind is predominantly indirect and incidental. This is not an attractive state of affairs, for several reasons. First, opinions, beliefs, attitudes and emotions are targets of manifold and far-ranging attempts of influence and manipulation, from propaganda over advertisement and marketing that exploit psychological weaknesses to forceful administration of drugs. Legal protection against such interferences may prove insufficient. Second, the present age is characterised by a high prevalence of psychological problems, at least in Western countries. Almost a third of the EU population suffers from neurological or psychiatric diseases annually.12 Depression will soon become the disorder causing the highest burdens globally. First voices call upon the UN to initiate global action against the ‘mental illness epidemic’.13 It is clear that causes of mental health problems are often poorly understood, a subject too manifold and complex to be rehearsed here, and the law is likely not the right forum for eliminating them. Nonetheless, the weak legal protection of human minds and their dire situation might not be only coincidental. The mental health epidemic urges the law to reconsider and potentially reform mind-protecting norms. This is, third, also prompted by advances in cognitive sciences which afford novel technical means to alter minds. Minds are targeted by a range of psychological, medical and biotechnological interventions, from familiar forms of psychotherapy to pharmaceuticals to novel 10

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Defining (normatively laden) terms as ‘manipulative interferences’ or ‘undue influence’ is almost impossible: see C. Coons and M. Weber, Manipulation: Theory and Practice (New York: Oxford University Press, 2014). Changing minds is, of course one, of the meta-themes of psychology. A classic work on influence through persuasion is R. B. Cialdini, Influence: The Psychology of Persuasion (New York: Collins Business, 2007). The right should also be conceived with a positive dimension and be applicable in the horizontal relation between private citizens, but these aspects are left aside in the following. H. U. Wittchen et al., ‘The Size and Burden of Mental Disorders and Other Disorders of the Brain in Europe’ (2011) 21 European Neuropsychopharmacology 655. World Health Organization, The Global Burden of Disease: 2004 Update (Geneva: WHO, 2008), p. 43; J. K. Bass et al., ‘A United Nations General Assembly Special Session for Mental, Neurological and Substance Disorders: The Time Has Come…’ (2012) 9(1) Plos Medicine E1001159.

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electro-magnetic methods of brain stimulation.14 Moreover, devices connecting brains with computers have become available.15 Such unparalleled means to access brains and minds call for renegotiations of the boundaries between personal and social spheres. Broadly speaking: the greater the extent to which the skull as the natural barrier of the mind becomes permeable, the more pressing the need to draw normative limits to interventions. Reminiscent of calls for bodily self-determination in matters such as abortion, people demand the right to calibrate their minds through old and novel means, as renewed debates over legalisation of drugs for leisure and enhancement exemplify.16 Moreover, governments may show great interest in these technologies for purposes such as the military, law enforcement and criminal justice.17 However, fourth, it should be emphasised that the right does not only apply to cuttingedge technologies. In the construal suggested here, it applies to all forms of mind-interventions, from psychotherapy over advertisement to nudging,18 and thus calls for re-examining established practices. A controversial example is coercive psychiatric medication.19 Administered without patient consent, psychiatric interventions aim at altering how patients think, feel or behave. They are paradigmatic examples of coercive state interventions into minds. It is remarkable and revealing that jurisprudence on coercive psychiatry routinely deals with minutiae of bodily effects of administered substances, and deprivations of liberty through confinement, but leaves the core question often strangely unaddressed: when is the state allowed to alter how a person thinks or feels?20 14

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See The President’s Council on Bioethics (USA), Beyond Therapy:  Biotechnology and the Pursuit of Happiness (New York: Dana Press, 2003); R. Merkel et al., Intervening in the Brain: Changing Psyche and Society (Berlin: Springer, 2007); Nuffield Council on Bioethics, Novel Neurotechnologies: Intervening in the Brain (London: Nuffield Council on Bioethics, 2013), available at www.nuffieldbioethics.org. J. Wolpaw and E. W. Wolpaw, Brain-Computer Interfaces:  Principles and Practice (Oxford:  Oxford University Press, 2012). Cognitive enhancement exemplifies the demand to alter one’s mind and the corresponding right to do so:  see R. G. Boire, ‘Neurocops: The Politics of Prohibition and the Future of Enforcing Social Policy from Inside of the Body’ (2005) Journal of Law and Health 215; H. Greely et  al., ‘Towards Responsible Use of Cognitive-Enhancing Drugs by the Healthy’ (2008) 456 Nature 702; C. Walsh, ‘Psychedelics and Cognitive Liberty: Reimagining Drug Policy through the Prism of Human Rights’ (2016) 29 International Journal of Drug Policy 80; C. Bublitz, ‘Drugs, Enhancements & Rights: Ten Points for Lawmakers to Consider’, in F. Jotterlad and V. Dubljevic (eds.), Cognitive Enhancement: Ethical and Policy Implications in International Perspective (New York: Oxford University Press, 2016). J. Moreno, Mind Wars: Brain Science and the Military in the 21st Century (New York: Bellevue Literary Press, 2012); T. Douglas, ‘Criminal Rehabilitation through Medical Intervention: Moral Liability and the Right to Bodily Integrity’ (2014) 18(2) The Journal of Ethics 101. R. Thaler and C. Sunstein, Nudge:  Improving Decisions about Health, Wealth and Happiness (New Haven:  Yale University Press, 2008). The nudging controversy is another example of the incomplete protection of the mind. But addressing limits of influence on choices (‘choice architecture’) with respect to nudges only tends to consider the more general issue of which nudges are only an instantiation. The ongoing controversy over psychiatric treatment is underscored by the fact that the Council of Europe (2015) is currently drafting an additional protocol on involuntary placement and treatment to the so-called Oviedo Convention (Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, Oviedo, 4 April 1997, in force 1 December 1999, ETS No. 164.) See H.-J. Albrecht, ‘Legal Aspects of the Use of Coercive Measures in Psychiatry’, in E. Völlm and N. Nedopil, The Use of Coercive Measures in Forensic Psychiatric Care (Berlin: Springer, 2016), p. 42. The ECtHR has made a range of decisions concerning psychiatry, but they concern issues other than interventions into minds. A case that comes close is ECtHR, Wenner v. Germany (App. no. 62303/13), judgment, 1 September 2016 regarding mental suffering because of drug withdrawal symptoms. In a recent judgment, the Court, apparently for the first time, explicitly acknowledged the ‘medical intervention in defiance of subject’s will’ in addition to confinement. However, it still ignores psychological integrity when it writes that such forced psychiatric medication ‘will give rise to an interference with … her right to physical integrity’: ECtHR, Plesó v. Hungary (Appl. no. 4124/08), judgment, 2 October 2010, para. 65.)

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The lacuna in the protection of the person with respect to the mind becomes evident here. If the law tests psychiatric interventions against bodily integrity only, it fails to engage with what affected persons are mostly concerned about: the forceful alteration of their thinking and feeling, the invasion of fundamental aspects of their subjectivity. These mental effects are not captured by bodily harms. While one might view paternalistic psychiatric interventions as a special case because patients are legally incompetent and treatments are solely for their benefit, structurally similar questions emerge with respect to punishing or rehabilitating offenders in forensic settings, controlling supposedly dangerous persons or restoring defendants’ fitness to stand trial.21 The widely held belief that governments have no business over minds of citizens is thus misleading.22 States influence minds of citizens in many ways, from education to culture to regulation of mind-altering substances. It also bears noting that one of the paradoxes of democracies which permeated even Rousseau’s Social Contract is that they require homines democratici – citizens with a specific mindset for the common good. This mindset has to be nurtured (instilled) through public education.23 So, if states alter minds of citizens through interventions that are only unsystematically and indirectly covered by legal provisions, human rights law has good reasons to reconsider its accommodation of the mind.

30.3 Reasons against Legal Protection of the Mind There may be reasons for the weak protection of the mind, and they may affect construals of a human right to the mind. Let us briefly recapitulate the most important ones. Sometimes the law seems based on misleading metaphysical premises – dualisms that consider mind and brain as two separate entities (e.g. a Cartesian substance dualism). Only such a premise allows the law to draw clear-cut distinctions between mental and bodily properties like ‘purely psychological harm’ (there is no ‘pure’ mental harm if mind and brain are inseparably connected).24 Moreover, such dualisms sustain beliefs that the mind is largely intangible and invincible. In the words of US Supreme Court Justice Murphy, ‘[f]reedom to think is absolute of its own nature’ because even ‘the most tyrannical government is powerless to control the inward workings of the mind’.25 In the same vein, contemporary commentators on the ECHR note that ‘thoughts and views, as long as they are not expressed, are intangible’.26 Furthermore, the mind inhabits 21

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United States Supreme Court, Sell v. United States, 539 U.S. 166 (2003) concerned fitness to stand trial and stirred debates among US scholars about limits to governmental interventions into minds: E. Schultz, ‘Selling Your Soul to the Courts: Forced Medication to Achieve Trail Competency in the Wake of Sell v. United States’ (2005) 38 Akron Law Review 503; Boire, ‘Neurocops’. J. Tussman, Government and the Mind (New York: Oxford University Press, 1977). N. Paulo and C. Bublitz, ‘Pow(d)er to the People? Voter Manipulation, Legitimacy, and the Relevance of Moral Psychology for Democratic Theory’ (2016) Neuroethics 1, available at https://link.springer.com/article/10.1007/s12152016-9266-7#citeas; J. Fishkin, ‘Manipulation and Democratic Theory’, in W. Le Cheminant and J. M. Parrish (eds.), Manipulating Democracy: Democratic Theory, Political Psychology, and Mass Media (London: Routledge, 2011). Sabine Michalowski commented that the suggested right appears to be based on mind–brain dualism. It is, but not in a metaphysical sense. It is a normative dualism in the sense that the protection of the mind has to follow unique rules and doctrines, different to those that apply to bodies, for normative reasons. Doctrines of ‘bodily harm’ are insufficient for capturing mind-interventions which fail to change the body in a relevant way. Consider psychotherapy: although it changes brain activity, it is implausible to consider it as an interference with bodily integrity. More generally, every verbal communication induces brain activity in listeners, but considering talking to someone as interfering with her bodily integrity is implausible. Thus, though ontologically indivisible, mind and body require different legal frameworks. United States Supreme Court, Jones v. Opelika, 316 U.S. 584, 618 (1948) (Murphy dissenting). B. Vermeulen, ‘Article 9’, in P. van Dijk et al. (eds.), Theory and Practice of the European Convention on Human Rights, 4th ed. (Cambridge: Intersentia, 2006), p. 751.

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a peculiar epistemic position. Mental entities (and their causal history) are hard to capture and operationalise with the forensic realities against which the law is conceived. They are, after all, subjective states that only indirectly or correlatively manifest themselves in the ‘objective’ world observable in the third-person perspective. This makes providing proofs of mental states complicated – though not impossible – and feeds into general concerns about malingering and avalanches of (unwarranted) claims flooding legal systems. Unsurprisingly, the legal role of the mind is reconsidered at a time in which scientific advancements promise to naturalise the mind, i.e. ground it in objectively accessible physiological (neurobiological) processes. However, naturalising the mind remains an aspiration at present, and the degree to which it will reveal itself to external measurement is not clear.27 Many other legally relevant questions also remain unclear (e.g. whether top-down mental causation exists).28 This uncertainty generalises:  the mind is studied by different disciplines, from reductionist strands in neuroscience to almost spiritual approaches in psychology, which offer quite diverging models of the mind, its elements and dynamics. Legal reluctance to deal with domains of scientific disagreement is understandable. But nonetheless, the law can no longer hide from regulations behind crude mind–body dualisms if effects of interventions are sufficiently clear. The fact that interventions from talk therapy to brain stimulation effectively alter minds is indubitable. The law then has to work with the best available scientific explanations, incomplete as they might be. If domains not fully understood by science were left unregulated, the law would fail to protect persons against many novel threats. Unsettled scientific questions are thus no argument against protection of the mind, but rather an instance of the familiar problem of legal decision-making under uncertainty. Finally, do substantive normative considerations speak against mind protection? That it deserves full legal protection is rarely denied. A  principled dismissal of the value of mental integrity would also be unpersuasive. Under the widely acknowledged premise that protection of freedom and autonomy as well as (capacities for) personhood are among the foundational reasons for human rights, it would be strange if self-determination did not extend to what is most central to the person – her mind. The importance of the mind is almost self-evident. But there might be other worries. Stronger protection of minds may curb (too) many other valuable freedoms. After all, a mind-protecting right commands the duty-bearer – i.e. everyone – to constrain their behaviour to avoid causing (potential) mental effects in others. But social life is harmful and hurtful. People intentionally influence and hurt each other all the time as part of socially accepted and desirable ways of living. Refraining from all forms of mental influence and infliction of emotional pain cannot be a plausible legal obligation in free societies. In this connection, the right to mental integrity well illustrates a general point of the topic of this volume: every novel human right necessarily undermines freedoms.29 The maxim that freedoms of one person end where those of others begin implies that any additional liberty of one person potentially affects freedoms of others. In standard accounts of rights, every novel right entails at least one novel duty per definitionem.30 These new duties might appear neglectable in the vertical relation. But human rights regularly also apply, directly or indirectly, horizontally between 27

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See contributions in S. Richmond et al. (eds.), I Know What You’re Thinking: Brain Imaging and Mental Privacy (Oxford: Oxford University Press, 2012). D. Robb and J. Heil, ‘Mental Causation’ (revised 10 October 2018), in E. N. Zalta (ed.), The Stanford Encyclopedia of Philosophy, available at https://plato.stanford.edu/entries/mental-causation/. See J. W. Nickel, Making Sense of Human Rights, 2nd ed. (Oxford: Blackwell, 2007), chapter 2. In the tradition of W. Hohfeld, Fundamental Legal Conceptions (New Haven: Yale University Press, 1964), rights are defined by their correlative duties.

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citizens. Novel rights of one person therefore provide grounds for state actions against others. Just as economists remind us that there is no free lunch, legal scholars should bear in mind that there are no free legal freedoms. In a sense, freedoms can only be redistributed. This interdependence between rights and duties is especially salient with respect to those that have the potential to drastically limit other freedoms, such as mental self-determination. This leads to a peculiarity of human minds and its implications. The law usually conceives of bodies as systems closed-off from the external world, with the bodily envelope forming a layer of separation between person and world. This layer regularly marks the normative border between the person and society. Whatever crosses it potentially infringes with rights (e.g. bodily integrity, battery). Although the notion of a sealed-off body becomes implausible on a closer look, since bodies constantly interact with the physical environment, it has proven useful for normative purposes. The mind, by contrast, cannot be conceptualised, even in an idealised fashion, as closed-off from the world because minds are almost constantly connected to it through the senses. Through perception, minds mediate between organisms’ inner functioning and external demands. Accordingly, every change in the external world is a potential mind-changing stimulus. But legally, not every action that changes the external world can be considered, not even prima facie, to interfere with mental integrity.31 This marks an important difference between bodies and minds and suggests asymmetries in their legal protection. Another difference, the ubiquity of interferences with minds, has already been mentioned. People influence and hurt each other all the time. Conversely, everyone is influenced by a myriad of factors, often operating outside their awareness. Ordinary conversations may change thoughts, opinions or behaviour through non-rational or non-conscious factors, and so may trivial situational factors. Similarly, mental harm is ubiquitous. People ‘emotionally’ hurt each other all the time. From group-exclusion to betrayal by partners, people frequently induce negative emotions in others. While some of these harms reflect a non-respectful way of dealing with the psyche of others, many are simply inevitable consequences of accepted forms of social interaction, of diverging interests or of expectations that are too high. Some forms of inflicting mental harm may even be (ethically) valuable. Consider criticism. Although it foreseeably has the potential to hurt people, it is a valuable social practice that hardly calls for restriction. It also highlights that mental harms often depend on the psychological reactions of affected persons. A stoic will be less disappointed and emotionally hurt than a narcissist. Thus the common law doctrine to ‘take victims as they are’, in conjunction with a ban on inflicting emotional harm, does not seem promising unless one is prepared to severely curb social interactions. Thus, I suggest that ordinary negatively valenced mental states cannot be the domain of (human rights) law; only exceptional attacks on the mind may qualify. These are considerable but not insurmountable objections to the legal protection of the mind. They provide some desiderata: protection of the mind must be limited to severe, exceptionally worrisome interferences. Models and doctrines have to be developed that define impermissible actions more concretely and provide workable criteria while observing the setbacks to other freedoms they imply. In fact, one of the main hurdles for recognising the right to mental self-determination seems to be the lack of a plausible and feasible construal of scope and limits.

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C. Bublitz, ‘Why Means Matter:  Legally Relevant Differences between Direct And Indirect Interventions into Other Minds’, in N. A. Vincent (ed.), Neuro-Interventions and the Law:  Regulating Human Mental Capacity (New York: Oxford University Press, forthcoming).

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30.4 Anchor Points 30.4.1 Freedom of Thought In theory, some of the oldest human rights protect parts of the mind – freedom of thought, conscience and religion, which are enshrined in every human rights treaty (e.g. Article 18 Universal Declaration of Human Rights, Article 19 International Covenant on Civil and Political Rights (ICCPR), Article 12(1) American Convention on Human Rights, Article 9 European Convention on Human Rights (ECHR)) have an inner side (forum internum).32 Additionally, the ‘freedom to hold opinions without interference’ (Art. 19(1) ICCPR, Art. 10(1) ECHR) protects the inner sphere of opinion-formation. These guarantees are regularly considered unconditional or absolute, interferences are not justifiable and freedom of thought is even non-derogable (Art. 4(2) ICCPR).33 The ECtHR calls freedom of thought a ‘foundation of democracy’.34 Some of the strongest human rights thus protect the formation of thoughts, beliefs and opinions. This means, I  suggest, the psychological processes of thinking, acquiring and processing data, memory, judgment and their like. However, in stark contrast to the proclaimed importance of freedom of thought stands its practical insignificance.35 Leaving the special cases of religion and conscience aside, there seems to be not a single case in international human rights law in which the inner side of freedom of thought played a decisive role.36 This is surprising, as many potential interferences are conceivable. The not-well-defined scope of the right raises several questions. What is the forum internum precisely? Does it protect particular thoughts or the activity of thinking? And, echoing Frege, what is a thought? Is it different to an emotion, is it merely a psychological phenomenon, or does it have an objective existence?37 Does the right encompass all thoughts, or only those about important matters? Are there rationality constraints, e.g., are ‘delusional’ thoughts targeted by psychiatry within the ambit?38 Moreover, what interferes with thought? Such questions have not been thoroughly examined by courts or scholarship. The literature on freedom of thought is sparse.39 Some seem to view freedom of thought more as a guiding 32

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Whether freedom of thought, conscience and religion is one right with a shared forum internum or a heading for several rights is an open question. While the ECtHR speaks about it in the singular, different scopes suggest a plurality. HRC, CCPR General Comment No. 22: The Right to Freedom of Thought, Conscience and Religion, 27 September 1993, UN Doc. CCPR/C/21/Rev.1/Add.4; The non-derogable nature is reiterated in HRC, CCPR, General Comment No. 29: States of Emergency, 31 August 2001, UN Doc. CCPR/C/21/Rev.1/Add.11. ECtHR, Kokkinkakis v. Greece (Appl. no. 14307/88), judgment, 25 May 1993, para. 31. See the comprehensive treatment in C. Bublitz, ‘Freedom of Thought in the Age of Neuroscience’ (2014) 100 Archiv für Rechts- und Sozialphilosophie 1. See the overview on Art. 18 in S. Joseph and M. Castan, International Covenant on Civil and Political Rights, 3rd ed. (Oxford: Oxford University Press, 2013), p. 563. G. Frege, ‘The Thought: A Logical Inquiry’ (1956) 65 Mind 289. The evident tension between freedom of thought and psychiatry has rarely been addressed by human rights courts or scholarship. Of the few exceptions, M. Nowak, U.N. Covenant on Civil and Political Rights. CCPR Commentary, 2nd ed. (Kehl: Engel, 2015), p. 413 mentions ‘influencing the … mind with psychoactive drugs’ without applying this to psychiatric praxis. M. Stenlund, ‘Is There a Right to Hold a Delusion? Delusions as a Challenge for Human Rights Discussions’ (2013) 16 Ethical Theory and Moral Practice 829 and M. Stenlund, ‘The Freedom of Belief and Opinion of People with Psychosis:  The Viewpoint of the Capabilities Approach’ (2017) 46 International Journal of Mental Health 18 provide philosophically informed attempts to lessen the tension. Jurisprudence and scholarship focus almost exclusively on freedom of religion and ‘conscientious objections’: see E.  Wicks et  al., European Convention on Human Rights, 6th ed. (Oxford:  Oxford University Press, 2014), p.  411; D. J. Harris et al., Law of the European Convention on Human Rights, 3rd ed. (Oxford: Oxford University Press, 2014); W. Schabas, The European Convention on Human Rights. A Commentary (Oxford: Oxford University Press, 2015). Notable exceptions mentioning freedom of thought in commentaries are Vermeulen, ‘Article 9’; B. Vermeulen and M. Roosmalen, ‘Freedom of Thought, Conscience and Religion’, in P. van Dijk et al. (eds.), Theory and Practice of

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idea  – the motto of Enlightenment  – rather than a specific and effective subjective right.40 This is related to the (mis-)conception that it can be interfered with only by exceptional means (‘brainwashing’, indoctrination, ‘inquisitorial’ methods). Former ECtHR judge Loucaides summarises that ‘very little has been written about’ the right, which ‘may be attributed to the fact that freedom of thought as a general rule may create a problem only when manifested through the expression of ideas’.41 He reiterates a widely shared presupposition: unexpressed thoughts are invincible.42 However, given manifold ways to change thinking, from cognitive therapy to drugs administered without patient consent to psychological priming or thought-changing institutions like schools and universities, this premise seems unsustainable.43 To become an effective ‘living right’, freedom of thought has to be reconstructed in light of plausible empirical premises. Political calls for a stronger protection of thought were voiced, particularly in the USA, under the banner of ‘cognitive liberty’.44 I have proposed four principles for its reconstruction elsewhere.45 Instead of rehearsing them here, I will expand them into a broader right to mental self-determination. 30.4.2 The Right to Mental Integrity There is a second anchor, the right to mental integrity in the ECHR, recently codified in Article 3(1) CFR: ‘Everyone has the right to respect for physical and mental integrity.’ In the drafting process, ‘mental integrity’ was introduced next to ‘physical integrity’ to provide comprehensive protection of the person, especially against novel technologies. Nonetheless, meaning and scope were not thoroughly discussed. During final debates a delegate remarked that the ‘concept of mental integrity remains a mystery to Swedish experts who cannot find it in either the Convention on Biomedicine or any other international instrument’.46 However, the right was not created ex nihilo; it emerged from the jurisprudence of the ECtHR on Article 8 (private life) under the heading of ‘psychological integrity’.47 Although ‘mental’ and ‘psychological’ might

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the European Convention on Human Rights, 5th ed. (Cambridge: Intersentia, 2018), and Nowak, CCPR Commentary, p. 412, who defines it as the right to ‘develop autonomously thoughts and a conscience free from impermissible influence’. See also P.-H. Teitgen, ‘Establishment of a Collective Guarantee of Essential Freedoms and Fundamental Rights’, Report for the Parliamentary Assembly of the Council of Europe, 5 September 1949, Doc. 77, p. 7 (the Teigen Report). Even in philosophy and the discipline of free thought, the concept has not received much attention. The standard work about its history was written a century ago and concerns mainly the tension between religion and Enlightenment: J. B. Bury, Freedom of Thought: A History (Amherst: Prometheus Books, 2007). L. Loucaides, ‘The Right to Freedom of Thought as Protected by the European Convention on Human Rights’ (2012) 1 Cyprus Human Rights Law Review 79. Vermeulen, ‘Article 9’. The Teitgen report (p. 12) suggested protection of thought against ‘those abominable methods of police enquiry or judicial process which rob the suspected or accused person of control of his intellectual faculties and of Conscience’. This shows that drafters did not view thoughts as intangible. See R. Boire, ‘On Cognitive Liberty (Part 1)’ (1999) 1 Journal of Cognitive Liberties 7; R. Boire, ‘On Cognitive Liberty (Part  2)’ (2001) 2 Journal of Cognitive Liberties 7; W. Sententia, ‘Neuroethical Considerations:  Cognitive Liberty and Converging Technologies for Improving Human Cognition’ (2004) 1013(1) Annals of the New York Academy of Sciences 221. Bublitz, ‘Freedom of Thought in the Age of Neuroscience’, 1–25. M. Borowski, ‘Art. 3 Recht auf Unversertheit’, in J. Meyer (ed.), Charta der Grundrechte der Europäischen Union, 3rd ed. (Baden-Baden, Nomos: 2011), p. 120. See the correct remark by M. Nowak, ‘Article 3 CFR’, in EU Network of Independent Experts on Fundamental Rights (eds.), Commentary of the Charter of Fundamental Rights of the European Union (Brussels: European Commission, June 2006), p. 36. In the history of legal ideas, one might view Art. 1 of the Oviedo Convention from 1997 as a predecessor demanding ‘respect for integrity’ of persons. Art. 19(1) of the Convention on the Rights of the Child (CRC), 20 November 1989, in force 2 September 1990, 1577 UNTS 3, protects children against ‘physical and mental violence’, but that clearly

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have slightly diverging meanings, there are no indications that they refer to different concepts in the Convention. The ECtHR repeatedly emphasised a broad understanding of ‘private life’ including bodily and psychological integrity: The Court … reiterates that private life is a broad term, encompassing, inter alia, aspects of an individual’s physical and social identity including the right to personal autonomy, personal development and … a person’s physical and psychological integrity … [T]he State is also under a positive obligation to secure to its citizens their right to effective respect for this integrity.48

This understanding echoes the notion of privacy as the ‘right to be let  alone’ in Warren & Brandeis’ sense.49 The secluded private sphere is not conceptually tied to the house or physical spaces; it may encompass the mental sphere.50 Privacy is ‘freedom from unwanted intrusions – be that in the head or home’.51 But what is the scope of the right, what is an interference, where are its limits? Although reference to ‘psychological integrity’ has been well established in the ECtHR’s case law since the 1990s, the term remains undertheorised. No more than twenty rulings concern psychological integrity, and nowhere does the Court elaborate on the concept. Still, some observations can be made. Psychological integrity is sometimes understood as mental health. In Bensaid v. UK, which concerned the expulsion of a mentally disordered person to a country where psychiatric treatment was unavailable, the Court wrote: Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.52

Although the Court did not find a violation, it considered mental health and stability as elements in the ambit of Article 8. But ‘mental integrity’ seems conceptually even broader and may capture interventions with effects that do not amount to setbacks to mental health or stability. The ECtHR seems to share such a wide understanding. For instance, it has considered harms to reputation as harms to psychological integrity.53 Maltreatment in police custody which left applicants ‘insulted, deprived of sleep for several days and subjected to assault’ (without leaving physical marks) can harm mental integrity54, as can repeated harassment of mentally disordered persons in public places.55 The Court held that mental integrity was implicated even though the applicants did not suffer from mental disorders in a clinical-pathological sense.

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aims at much narrower cases of child maltreatment. Finally, Art. 17 of the Convention on Rights of Persons with Disabilities (CRPD), New York, 13 December 2006, in force 3 May 2008, 2515 UNTS 3 guarantees respect for ‘physical and mental integrity’. ECtHR, Tysiac v. Poland (Appl. no. 5410/03), judgment, 20 March 2007. S. D. Warren and L. D. Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law Review 193. Accordingly, ‘integrity’ is viewed as being protected by Art. 17 CCPR: see Nowak, CCPR Commentary, p. 386. J. Marshall, Personal Freedom through Human Rights Law? Autonomy, Identity and Integrity under the European Convention on Human Rights (Leiden: Martinus Nijhoff, 2009), p. 3. ECtHR, Bensaid v.  United Kingdom (Appl. no.  44599/98), judgment, 6 February 2001; Dolenec v.  Croatia (Appl. no. 25282/06), judgment, 26 November 2009, para. 165 (emphasis added). ECtHR, Kyriakides v. Cyprus (Appl. no. 39058/05), judgment, 16 October 2008; Taliadorou and Stylianou v. Cyprus (Appl. nos. 39627/05 and 39631/05), judgment, 16 October 2008; A. v. Norway (App. no. 28070/06), judgment, 9 April 2009, para. 74; Pfeifer v. Austria (Appl. no. 12556/03), judgment, 15 November 2007, para. 35; also Karako v. Hungary (Appl. no.  39311/05), judgment, 28 April 2009, and partly concurring opinion of Judge Jociene; Axel Springer AG v. Germany (Appl. no. 39954/08), judgment, 7 February 2012, para. 83. ECtHR, Bati and others v. Turkey (Appl. nos. 33097/96 and 57834/00), judgment, 3 June 2004. ECtHR, Dordevic v. Croatia (App. no. 41526/10), judgment, 24 July 2012.

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Furthermore, a judgment of a Chamber in the second section in Gross v. Switzerland (later dismissed by the Grand Chamber for formal reasons) merits consideration.56 The applicant suffered a ‘considerable degree of anguish’ because Swiss law was uncertain as to whether non-terminally-ill patients could acquire lethal substances. The request by the applicant who wanted to end her life was rejected by the authorities. The Court took issue because of the applicant’s uncertainty during ordinary administrative and court proceedings which lasted two years, including two appeals, one to the Federal Supreme Court. One might imagine the dire psychological situation of the applicant and the burdens that legal proceedings had caused her. However, such burdens seemed like manifestations of the ‘ordinary’ uncertainties and anxieties of life. Although it did not become final, this decision indicates the potential broadness of a right to mental integrity. Unfortunately, neither the Court nor scholarship provide guidance on how to separate the innumerous negative mental effects which social life entails from those warranting special concern.57 Given the fact that millions of Europeans suffer from mental disorders, and probably many more from non-pathological anxieties, it remains unclear why only about twenty cases concerning psychological integrity have reached the Court, and whether there is a doctrine separating the negative mental effects worth considering from the many others. Moreover, the jurisprudence does not provide hints as to whether mind-interventions problematic for other reasons, such as manipulations of decision-making, fall within the ambit of mental integrity. This touches upon the more general question of what ‘integrity’ means more precisely with respect to a highly dynamic and constantly evolving system as the mind. Lastly, does the right also encompass a pro tanto permission to change one’s own mind, e.g. mind-doping through brain-stimulation? This touches upon a broader norm-theoretical question: what is an integrity right? Although there is no settled understanding, a right to the integrity of X seems to denote the preservation of the intactness, unity or identity of X. Alterations of these features then constitute interferences. However, some commentators understand a right to integrity as entailing self-determination.58 The existing right to mental integrity therefore is the right to mental selfdetermination proposed here. However, an entailment relation seems unfounded. Claims against others to preserve the integrity of X do not logically entail that claimholders can freely determine to disintegrate X. They might equally be bound to preserve its integrity. Consider the right to life:  claims against others to not-interfere with one’s life do not necessarily entail a permission to commit suicide. Surely, the reasons in favour of protecting the integrity of X may also apply to protecting self-determination. But that is a substantive argument about the scope of the

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ECtHR, Gross v. Switzerland (Appl. no. 67810/10), judgment, 30 September 2014. Although scholarship views freedom from interference with physical and psychological integrity as one of the main elements of Art. 8, ‘psychological integrity’ is rarely examined closely. For instance, discussions in Bernadette Rainey, Elizabeth Wicks and Clare Ovey, Jacobs, White and Ovey:  The European Convention on Human Rights, 6th ed. (Oxford:  Oxford University Press, 2014), pp. 366ff. do not address psychology. The voluminous commentary by W. Schabas (The European Convention on Human Rights) mentions the term four times in 1,400 pages. Some notable exceptions in commentaries provide some gloss. J. G. Merrills and A. H. Robertson, Human Rights in Europe: A Study of the European Convention on Human Rights, 4th ed. (Manchester:  Manchester University Press, 2004), p. 138 speak of ‘mental inviolability’ and ‘intellectual freedom’; S. Michalowski, ‘Article 3’, in S. Peers et al. (eds.), EU Charter of Fundamental Rights: A Commentary (Oxford: Hart Publishers, 2014) understands mental integrity as ‘freedom from psychological pressure’ and ‘imposition of mental suffering’. K. de Vries, ‘Article 8’, in P. van Dijk et al. (eds.), Theory and Practice of the European Convention on Human Rights, 5th ed. (Cambridge: Intersentia, 2018), p. 690 notes it can be affected by well-founded anxiety or fear caused by threats or harassment. W. Höfling and S. Kempny, ‘Kommentierung zu Art. 3 GrCh’, in K. Stern and M. Sachs (eds.), Europäische Grundrechte-Charta (Munich: Beck, 2016), p. 164.

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right. Thus, properly understood, integrity rights do not entail the liberties characteristic of selfdetermination (e.g. power of waiver). This does not, of course, speak against adding them to an integrity right (as suggested here). After all, one of the oldest and strongest rights – freedom of thought – protects (ill-defined) parts of the mind in theory, but is empty in practice. A young European right protects broader (though still unclear) parts of the mind against undefined interferences. Both raise a range of intriguing and unaddressed questions.

30.5 Towards a Right to Mental Self- Determination 30.5.1 General Considerations In the following, some suggestions for construing the right are sketched. A modern legal protection of the mind should be based in one unified right that comprises the entire mind, including emotions and non-rational processes. The alternative, categorical distinctions between mental entities as ‘thoughts’, ‘opinions’ or ‘emotions’ seems futile. Cognitive science shows that the dichotomy between reason and emotion is misleading. Mental entities are highly interwoven and interdependent, and interventions into one frequently alter the other. Categorical distinctions are also questionable on substantive grounds. Why should all thoughts, even trivial ones, enjoy absolute protection whereas emotional states are only weakly protected, if at all? Establishing one right that protects the mind in its entirety fills the yet unprotected gaps between mental integrity and freedom of thought. It creates a more general rather than a more specific right. In addition to the integrity dimension, it should encompass self-determination, i.e. the liberty to alter one’s mind or waive protection. The right then protects the freedom to determine what is in and on one’s mind. A strong, but not absolute right that allows for finer differentiations with respect to the importance of affected mental elements seems best suited. As the special protection of thought, conscience and religion shows, not all mental entities are equally important (see Figure 30.1). Some arguably deserve a high level of protection (e.g. political decision-making, religious beliefs). But these particularly important elements are not helpfully captured by the current terminology of ‘thought’ or ‘opinion’, which is too broad. Rather, normative arguments identifying the salient parts more precisely are necessary. Here are some candidates: first, political will formation. Freedom of thought is considered foundational for democracy because it secures preconditions in individual minds. The free formation of the popular will requires free formation of individual wills. Therefore, democracies have to provide protection against manipulative interferences with political will formation, including moral views more broadly (freedom of conscience).59 The second candidate is mental capacities for autonomous decision-making. Legal orders, criminal and private law presuppose personal autonomy. It grounds the respect of the legal system for decisions and actions, but also holding personal responsibility. But the legally presupposed autonomy of persons does not always correspond to their factual autonomy. Persons are much weaker, malleable and susceptible to influences than the legal ideal of the autonomous agent suggests (let  alone metaphysical challenges to free will). In short, the law treats persons as autonomous although their factual capacities fall short of those presupposed in idealtheory. Such a set-up is a viable political arrangement of liberalism. But it has consequences. Persons treated as autonomous by the law must possess the legal powers to keep others from 59

Paulo and Bublitz, ‘Pow(d)er to the People?’

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Scope of mental self-determination

Specially protected elements – e.g., political, moral, religious decision-making

Figure 30.1. Mental self-determination

interfering manipulatively or exploitatively with their autonomy. Otherwise the law would run into internal incoherences. The third candidate is mental capacities for legal competence. Only legally competent persons are free and equal citizens in a full sense. Stripping a person of their factual mental capacities necessary for competence is tantamount to depriving them of many basic rights. In a community of free and equal citizens, everyone needs to have the legal powers to keep others from interfering with the mental capacities that are preconditions of legal competence. Furthermore, additional aspects such as religious beliefs or important intimate matters (e.g. sexual orientation) may warrant the strongest protection. Further analysis to identify zones of special protection more precisely is necessary. 30.5.2 Scope of the Right 30.5.2.1 No Claims over Right Holders’ Minds Concerning the substance of the right, I  wish to propose four principles. The first and most abstract is that states have no claims over right holders’ minds, i.e. claims that right holders be in a specific mental state, entertain specific thoughts, feel in specific ways, etc. This follows almost with necessity from the idea of a legal freedom or liberty. A liberty to X can be defined as the absence of claims of others against X. Accordingly, the right prohibits impositions of duties over one’s mind. Note that right holders may incur mental duties voluntarily. In a mental economy, for instance, employment contracts imply that employees think about their assignments. Driving a car requires soberness. But these duties are taken on voluntarily, sometimes as part of a permit for dangerous conduct such as driving. Moreover, the right has arguable limits. One example is the mental duty of summoned witnesses to testify truthfully, which implies the duty to perform mental activities such as remembering. Imposing such trivial mental duties on witnesses might be justifiable, at least as long as it does not cause further mental setbacks (e.g. trauma).60 Finally, on a technical note, this liberty implies that interventions into minds of right holders cannot be justified by a duty on them to be in a specific state (other justifications notwithstanding).

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On a right to freedom of memory, which would be a part of mental self-determination, see A. Kolber, ‘Therapeutic Forgetting: The Legal and Ethical Implications of Memory Dampening’ (2006) 59 Vanderbilt Law Review 1559; C. Bublitz and M. Dresler, ‘A Duty to Remember, a Right to Forget? Memory Manipulations and the Law’, in J. Clausen and N. Levy (eds.), Handbook of Neuroethics (Dordrecht: Springer, 2015), p. 1279.

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30.5.2.2 Claims against Others regarding Non-Interference Furthermore, the right comprises claims against others to not-interfere with one’s mind (mental integrity). As previously noted, one of the thorny open questions in the construal of the right concerns interferences. A more fine-grained taxonomy of mind-interventions has to be developed. Moreover, from the conjunction of the claim to non-interference and the absence of mental duties, a liberty of right holders to freely change their minds follows. This liberty raises the question whether it extends to using the necessary means to change one’s mind (e.g. drugs, neurotools). Prima facie, it does, at least insofar as these means are necessary to attain particular mental states. A right to X usually entails the right to use the means to achieve X, at least as a supplementary right (freedom of expression entails a right to use a pen). Supplementary rights can surely be restricted, but this requires sound justification.61 30.5.2.3 No Negative Sanctions for Thoughts, Beliefs, Opinions Much of the historic Enlightenment idea of freedom of thought and expression was directed against governments imposing negative sanctions, even non-punitive, for unwelcome ideas or opinions. The Roman maxim cogitationis poenam nemo patitur already secured this inner freedom. In its tradition, the right to mental self-determination should protect right holders against negative sanctions which are based only on mental states. This corresponds to the understanding of ‘holding opinions without interference’ in Article 18(1) ICCPR by the Human Rights Committee (HRC), which bars ‘impairment of any rights under the Covenant on the basis of … opinions’.62 Despite this strong proclamation, state measures are often motivated and justified by reference to opinions of persons, primarily regarding security concerns (consider Jihadi beliefs). The same is true for mental states such as aggression or sexual proclivities. Furthermore, criminal sentencing is sometimes aggravated if offences are motivated by specific beliefs (e.g. racism). This is a negative sanction for a belief (punishment would be less severe in its absence). Arguably, such measures are morally justifiable. But freedom of opinion is protected unconditionally. This marks another discrepancy between strong proclamations of human rights and the lived realities in legal practice. Rendering the scope of ‘interference with opinions’ more precise will raise thorny questions in the future. 30.5.2.4 Mental Privacy Finally, mental self-determination also encompasses the liberty to not disclose one’s thoughts or feelings – mental privacy. This right will become more pressing as neuroscience advances. However, legal issues might largely be addressed by (reformed) privacy laws. 30.5.3 Interferences This bare sketch of the scope of the right prompts a range of questions requiring further discussion. The same is true for potential interferences. Defining them is a key challenge for a plausible construal of the right, as people change each other’s’ minds all the time, in a myriad of ways that are of no concern. Neither case law nor scholarship systematically addresses possible 61

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A standard which international drug conventions may not always fulfil as they fail to engage with any interest in the actions they prohibit. The idea that people may have a right to determine their emotional or cognitive states is strangely absent in documents, commentaries and statements of the treaty organs: see Bublitz, ‘Drugs, Enhancements & Rights’. HRC, CCPR General Comment No. 34: Art. 19: Freedoms of opinion and expression, 12 September 2011, UN Doc. CCPR/C/GC/34, para. 9.

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interferences with psychological integrity or freedom of thought. Some traces can be found in Article 18(2) ICCPR. It qualifies the modalities for interfering with the right by demanding ‘coercion which would impair his freedom to have or adopt’ a belief. The common meaning of coercion  – use of illicit threats to motivate another party to act  – captures at least some (but not all) potential interferences.63 A case in point is Kang v. Republic of Korea, in which better prison conditions and early release were offered if the detainee renounced his communist beliefs. The HRC adopted the view that such a system is coercive.64 However, it is worth noting that the interference lay in external threats (continuing confinement), rather than in more direct interventions into brains or psychological processes. Moreover, psychological techniques of coercive persuasion (‘brainwashing’) have been studied since the Second World War. In many historical prisoner-of-war cases, targets were indoctrinated while they were confined in poor living conditions. In combination, detainment and desperateness, physical maltreatment, undernourishment and ideological classes inducing guilt can have powerful psychological effects.65 The legal assessment of such cases is evident. Interventions are effective and hard to resist, they utilise hard-to-control processes – fear, isolation, desperation – and are brought about by means that by themselves are ethically and legally condemnable. Conceiving them as interferences with Article 18 ICCPR does not undermine any valuable freedom. More challenging are less evident cases. If, for instance, the right bars treatments ‘intended to change the process of thinking’ or ‘to change opinions’,66 or ‘influencing the conscious or subconscious mind … with means of manipulation’,67 attempts of persuasion with non-rational elements that exploit cognitive weaknesses, emotional susceptibilities or other vulnerabilities may suffice (sophisticated marketing methods). The law must develop a model of interferences with the strength of the intervention and its mode of operation as some of the relevant criteria.68 The right raises a range of further substantive and evidential questions. Conflicts between mental self-determination and permissions to send mind-altering stimuli, such as freedom of expression, may have to be reconciled. Limits on mental self-determination for paternalistic reasons or public interest have to be drawn. Detailed arguments require scenarios such as mandatory mind-interventions (e.g. treatment to stand trial, coercive psychiatry, rehabilitation of criminal offenders) or prohibitions of mind-interventions for reasons of social solidarity (‘mind doping’).69

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65 66

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One of the best works on the concept of coercion is A. Wertheimer, Coercion (Princeton: Princeton University Press, 1987). In General Comment No. 22, para. 5, the HRC does not provide a definition but lists ‘use of threat or physical force or penal sanctions’ or other practices with the same intention or effect. HRC, Yong-Joo Kang v.  Republic of Korea, Communication No. 878/1999, 16 July 2003, CCPR/C/78/D/878/1999, at 7.2. K. Taylor, Brainwashing: The Science of Thought Control (Oxford: Oxford University Press, 2006). Vermeulen, ‘Article 9’, p. 752. In the fifth edition the formulation is narrower, requiring ‘coercive steps’ to change beliefs, or governments ‘dictating’ beliefs: B. Vermeulen and M. van Roosmalen, ‘Article 9’, in P. van Dijk et al. (eds.), Theory and Practice of the European Convention on Human Rights, 5th ed. (Cambridge: Intersentia, 2018), p. 738. Nowak, CCPR Commentary, p. 413, who stresses that line-drawing between ordinary, daily and worrisome forms of influence is hard. Whether the mode by which an intervention operates is ethically or legally relevant is a key controversy of neuroethics. See N. Levy, Neuroethics (Cambridge:  Cambridge University Press, 2007); N. Levy, ‘Cognitive Enhancement: Defending the Parity Principle’, in N. A. Vincent (ed.), Neuro-Interventions and the Law: Regulating Human Mental Capacity (New York: Oxford University Press, forthcoming) for a dismissive argument, and Bublitz, ‘Why Means Matter’ for an affirmative argument. See the contributions in D. Birks and T. Douglas, Treatment for Crime: Philosophical Essays on Neurointerventions in Criminal Justice (Oxford: Oxford University Press, 2018).

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These brief remarks have hopefully indicated that the law is, in principle, capable of dealing with minds and mind-interventions, but fails to do so in practice. Recognising a human right to mental self-determination would reverberate in many areas of law and life. Advertisements, interior design of supermarkets, recruitment methods of spiritual sects or virtual reality are domains that warrant further scrutiny. The right may provide grounds for tort claims and lead to the establishment of criminal offences protecting the mind. Last but not least, it may affect how people treat each other’s minds in mundane interpersonal interactions.

30.6 A Novel Human Right? Let us finally reflect on the overarching theme of this volume. Is mental self-determination really a novel human right, or rather another example of magically conjured up rights?70 The question splits into two parts and partly dissolves into a third: is it (a) novel, (b) a human right and (c) sufficiently distinct? Regarding novelty, a key part of the right – mental integrity – was explicitly enumerated in the main treaties for the first time in the Convention on the Rights of Persons with Disabilities 2008 and the CFR 2009. It had made previous appearances in supporting roles in the jurisprudence of the ECtHR in the 1990s. As yet, its content is largely empty and its practical relevance low. Other parts of the right are captured by freedom of thought, a venerable idea already recognised in Roman law. Yet again, its scope is blurry and it has been without impact in legal practice for decades. Still other parts of mental self-determination in the construal suggested here are unknown to all jurisdictions. Thus, some parts are old, some new, some are borrowed and some are proposals existing only somewhere out in the wide blue yonder. So while the right partially exists in a nascent stage, its debut on the international scene and its full realisation are yet to come.71 Is it sufficiently distinct? It has grown out of and thus specifies Article 8 ECHR, ‘the nursery of rights’. But that is no decisive reason against its recognition as a stand-alone right. Ultimately, many rights are derivable from top-level principles such as dignity, autonomy and equality, or life, liberty and the pursuit of happiness. Nonetheless, defining rights more specifically is often necessary. One might say that legal systems have an inherent desire for lex specialis, for reductions of complexity through concretely tailored rules.72 In this sense, human rights are not indivisible. Specifications are not instances of worrisome rights proliferations.73 Rather than diluting or devaluing rights, they are sharpened and their significance is highlighted. Consequently, for clarity and coherence, bills enumerating hundreds of rights might be preferable to the current short-lists mainly written for universal political appeal (and a good bit of poetry and pathos). Accordingly, good reasons speak in favour of viewing mental self-determination as a right sufficiently distinct from others. Finally, does mental self-determination deserve to be elevated into the pantheon of human rights? Definite answers require a comprehensive theory of grounds of human rights and likely involve value judgments. A more modest start is the assumption that a right is a human right 70

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P. Alston, ‘Conjuring Up New Human Rights:  A Proposal for Quality Control’ (1984) 78 American Journal of International Law 607. If scholarly treatment of a right is an indication of its existence, a dearth of such treatment supports the idea that the right has not yet come fully into existence. This is, in a crude form, an idea that can be traced to N. Luhmann, Law as a Social System (Oxford: Oxford University Press, 2008). For the proliferation critique, see e.g. Nickel, Making Sense of Human Rights, chapter 6.

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if it meets the criteria for which other rights qualify as such. So, if there are human rights for reasons other than their positive recognition, these reasons would have to apply to mental selfdetermination as well. And they likely do. These reasons regularly refer to the relevance of a right for the person or the legal order. For instance, one of the key criteria forwarded by James Nickel is that they address substantial and recurrent threats.74 The human mind is the target of a wide range of interventions, and the prevalence of mental problems is at record levels. A threat to mental self-determination seems thus substantial. Moreover, Nickel and Philip Alston require a universal appeal of novel rights. They must be relevant for people in diverse cultures. The sovereignty over one’s mind seems to be an interest shared by almost everyone. It is a basic good that is valuable for the pursuit of diverse conceptions of a good life. Mental self-determination thus passes these rather loose tests for novel rights in the literature.75 But the case for its recognition is stronger. If human rights are about protecting essential qualities of humans against state powers, the central aspect that defines humans – their minds – should be encompassed. If they are about protecting freedoms, free decision-making is surely among their main concerns. If they seek to protect the vulnerable aspects of persons against pain, suffering and injury, they already pertain to (specific) mental states. If they are about human ‘capabilities’, they should include mental capabilities.76 If they are about protecting ‘normative agency’, they have to encompass the mental faculties necessary for forming and executing wills and intentions.77 Accordingly, central parts of the right to mental self-determination are almost inseparably connected to the goals and interests invoked to justify the human rights system itself. And of course, it is one of the background conditions for exercising and enjoying almost all other specific rights. Finally, mental self-determination secures the factual human capacities which the law regularly presupposes. Thereby, it secures the conditions of the possibility of liberal legal orders centred on autonomous subjects. If the law fails to protect mental freedoms against interferences, the entire legal structure grounded on the idea of free persons may collapse. Mental selfdetermination is thus among the foundation stones of legal orders, and this, if anything, seems to warrant its inclusion in the international bill of human rights.

74 75 76

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Ibid., chapter 5. Alston, ‘Conjuring Up New Human Rights’, p. 616. M. Nussbaum, Creating Capabilities (Cambridge, MA: Harvard University Press, 2011), pp. 33–34 provides a list of ten central capabilities in her famous approach. Three of them concern capabilities that would fall under the scope of mental self-determination (using one’s senses, imagination and thoughts; emotional capabilities; the ability for practical reasoning). J. Griffin (ed.), On Human Rights (Oxford: Oxford University Press, 2008).

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31 Critical Reflections on the Need for a Right to Mental Self-Determination Sabine Michalowski

Christoph Bublitz’s proposal that there is a need for a new right to mental self-determination, which he defines broadly as ‘the right to self-determine what is in and on one’s mind … consist[ing] of claims against others to not-interfere with minds of right holders, by either factually altering minds or by imposing legal duties pertaining to them’,1 is interesting and thoughtprovoking. As he explains, no explicit right to mental self-determination currently exists. Even though other rights, such as the right to mental integrity, the right to private life and freedom of thought, conscience, religion and opinion protect aspects of such a right, Bublitz argues that there are some gaps in protection that need addressing through a new self-standing right to mental self-determination. According to Bublitz, there are several reasons that justify the need for a right to mental self-determination:  the breadth and variety of interferences with people’s minds; the mental health epidemic; and ‘advances in cognitive sciences which afford novel technical means to alter minds’.2 He argues that the law is currently ill-equipped to address these issues, particularly as interferences with the mind are often only incidentally protected but rarely form the main focus of legal protection.3 The recognition of a right to mental self-determination would allow for a holistic protection of all interferences with the mind and thus overcome the current division between mental processes that are protected as thoughts, those that are sufficiently linked to physical processes to be implicitly protected by the right to physical integrity and those that are protected by a right to mental integrity.4 One can only agree that scientific uncertainty and disagreement about what the mind is and how it functions do not, in themselves, provide a reason or justification for the law not to protect it.5 Neither does the fact that the breadth of potential mind-interfering occurrences might significantly limit the freedoms of others6 stand in the way of the need for legal protection, as this problem could be addressed through defining the scope and permissible limitations of a right to mental self-determination. However, whether it follows from all this that a self-standing right to mental self-determination is necessary is a different issue. Given the focus of this book on new human rights, this comment 1 2 3 4 5 6

C. Bublitz, in this volume, p. 389. Ibid., p. 389. Ibid., p. 391. Ibid., p. 398. Ibid., p. 392. Ibid., p. 392.

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will focus on whether the rights and interests to be protected by a human right to mental selfdetermination are already, at least implicitly, protected by other rights, and whether the gaps in current protection identified by Bublitz make desirable the recognition of a free-standing right to mental self-determination.

31.1 Do We Need a Right to Mental Self- Determination in Addition to Existing Rights to Mental Integrity and Self- Determination? Bublitz provides an overview7 of the existing express protection of a right to mental integrity under Article 17 of the Convention on the Rights of Persons with Disabilities (CRPD) and Article 3(1) Charter of Fundamental Rights of the European Union, and the protection of that right through the jurisprudence of the European Court of Human Rights (ECtHR) as part of the right to private life under Article 8(1) of the ECHR.8 To this can be added the ECtHR’s jurisprudence on Article 3 of the ECHR which uses that article to protect mental integrity against grave interferences.9 Also, Article 3(2)(c) of the Clinical Trials Directive emphasises the need to safeguard the rights of the research subject to physical and mental integrity. Less directly, Article 5 of the Oviedo Convention protects respect for integrity with regard to the application of biology and medicine, but without specifically relating to mental integrity. 31.1.1 Existing Protection under the ECHR An important reason why Bublitz sees a need for a right to mental self-determination that goes beyond the existing protection under Article 8 of the ECHR is that he regards the concept of mental integrity as being too narrow to provide the comprehensive protection the mind should receive. He suggests a conceptual distinction between integrity and self-determination rights: the right to integrity is a right to be free from interferences, but ‘integrity rights do not entail the liberties characteristic of self-determination (e.g. power of waiver).’10 At least in the context of the ECHR, this can, however, be contested. While the ECtHR’s Article 8 jurisprudence often uses the language of integrity rather than that of self-determination, it is not clear that the Court would apply the conceptual distinction suggested by Bublitz. In Arskaya v. Ukraine, for example, the Court stated: the freedom to accept or refuse specific medical treatment is vital to the principles of selfdetermination and personal autonomy … the imposition of medical treatment without the consent of a mentally competent adult patient would interfere with a person’s physical integrity in a manner capable of engaging the rights protected under Article 8 §1 of the Convention.11

This seems to suggest that the Court regards integrity and self-determination as closely linked, in that the reason behind the protection of integrity is precisely that of safeguarding that person’s right to self-determination. Indeed, physical and mental integrity are just one part of the different ways in which Article 8(1) of the ECHR protects personal autonomy and self-determination. 7 8

9 10 11

Ibid., pp. 395ff. Often referred to as psychological integrity (e.g. ECtHR, Tysiac v. Poland (Appl. no. 5410/03), judgment, 20 March 2007, para. 107; Haas v. Switzerland (Appl. no. 31322/07), judgment, 20 January 2011, para. 50; MS v. Croatia (Appl. no.  75450/12), judgment, 19 February 2015, para. 74; sometimes as mental integrity implied in ECtHR, Dordevic v. Croatia (Appl. no. 41526/10), judgment, 24 July 2012, paras. 92–93. ECtHR, Jalloh v. Germany (Appl. no. 54810/00), judgment, 11 July 2006. Bublitz, in this volume, p. 398. ECtHR, Arskaya v. Ukraine (Appl. no. 45076/05), judgment, 5 December 2013, para. 69.

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In Tysiac v. Poland, for example, the Court explained in that respect that ‘private life is a broad term, encompassing, inter alia, aspects of an individual’s physical and social identity including the right to personal autonomy, personal development and … a person’s physical and psychological integrity’.12 And in Pretty v.  UK,13 the Court regarded as protected by Article 8(1) the choice to avoid further physical and mental suffering through resorting to assisted suicide, which is clearly an exercise of self-determination that goes beyond the protection of integrity in a narrower sense. The Court’s case law on assisted suicide moreover shows that Article 8 of the ECHR protects not just the person’s right to free determination of when and how to die, but rather suggests that this right, in principle, extends to enlisting the help of others in exercising that right. Article 8 also imposes a ‘positive obligation to secure to its citizens their right to effective respect for this integrity’,14 which includes providing protection from interferences by others, e.g. harassment over several years of a physically and mentally disabled person by children in his neighbourhood.15 Thus, even if mental integrity was as limited a concept under Article 8 of the ECHR as Bublitz suggests, this would not necessarily result in a lack of protection of wider mental selfdetermination through the various other aspects of the right to private life. While Bublitz suggests that the right to mental self-determination, ‘[i]n addition to the integrity dimension … should encompass self-determination, i.e. the liberty to alter one’s mind or waive protection’,16 the preceding discussion shows that Article 8 of the ECHR does just that. Both the novelty of and the need for a right to mental self-determination can therefore be questioned, at least if the right is sufficiently broad to encompass all elements that, according to Bublitz, deserve protection under a right to mental self-determination. Here it becomes important to consider the different aspects of the right to determine what is in and on one’s mind. Bublitz rightly suggests that both the ECtHR’s jurisprudence on the right to mental or psychological integrity and academic analysis of the issue have not yet provided clarity as to the scope and limits of the right to mental integrity.17 However, when he laments that ‘neither the Court nor scholarship provide guidance on how to separate the innumerous negative mental effects which social life entails from those warranting special concern’,18 it is not clear why they should, given the few cases that have so far been brought in this context.19 At the same time, the ECtHR jurisprudence has shown over the years that the very fact that the right to private life is undefined allows for ‘case-law to develop in line with social and technological developments’.20 The main contribution of the proposal for a right to mental self-determination could then be to sensitise the Court to the specific issues that might need to be included in its Article 8 analysis in years to come. The scope of the right to mental self-determination is envisaged by Bublitz to have four categories. The first is freedom from state claims over the person’s mind, e.g. the state cannot require the person to be in a particular state of mind, think specific thoughts or have particular feelings.21 12 13 14 15 16 17 18 19 20

21

ECtHR, Tysiac v. Poland (Appl. no. 5410/03), judgment, 20 March 2007, para. 107. ECtHR, Pretty v. UK (Appl. no. 2346/02), judgment, 29 April 2002, paras. 64–67. ECtHR, Tysiac v. Poland (Appl. no. 5410/03), judgment, 20 March 2007, para. 107. ECtHR, Dordevic v. Croatia (Application no. 41526/10), judgment, 24 July 2012. Bublitz, in this volume, p. 398. Ibid., pp. 396f. Ibid., p. 397. Ibid., p. 397. ECtHR, Guide on Article 8 of the European Convention on Human Rights (2018), p. 18, available at www.echr.coe .int/Documents/Guide_Art_8_ENG.pdf. Bublitz, in this volume, p. 399.

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The second category is freedom from interference by others, in which Bublitz interestingly includes not just the right to freely change one’s mind without interference, but also a prima facie right to use mind-changing tools such as drugs.22 The third is that the right protects against negative sanctions for particular thoughts or feelings.23 The final category includes mental privacy in the form of ‘the liberty to not disclose one’s thoughts or feelings’.24 Even though these categories remain somewhat abstract, which makes detailed analysis of them difficult, it seems that they could, in principle, be accommodated by Article 8 of the ECHR. Requiring a person to have a specific state of mind would clearly be an interference with their mental integrity. With regard to the second category invoked by Bublitz – freedom from interference that includes a prima facie right to use mind-changing tools, such as drugs – it is an argument that can potentially be made under Article 8(1), though its success would largely depend on how the Court saw the balancing of rights and interests, based on the reasons for which the use of such drugs might be prohibited or regulated. The formulation of the different categories makes clear the link between thoughts and other mental processes that provides Bublitz with one of the justifications for the need for an integral right to mental self-determination that aims to overcome the unconvincing dichotomy between thought and emotions and the difference of protection awarded to each of them.25 However, thoughts, including the right not to reveal them, are already protected by Article 8(1). In Folgerø v Norway, for example, the Court explained in this respect that ‘information about personal religious and philosophical conviction concerns some of the most intimate aspects of private life’26 and is therefore protected not only by Article 9 but also by Article 8 of the ECHR. It then seems that the artificial separation between thoughts and other mental processes is to some extent addressed by Article 8 jurisprudence, as the Court affords broad and holistic protection, including of thoughts, as part of the right to identity and autonomy.27 While the suggestion to combine freedom of thought, opinion and mental integrity into one self-standing right might be novel, it is thus not clear that there are any aspects of the scope of the new right that are not or cannot be protected by the already existing right to private life under Article 8 of the ECHR. Bublitz provides some additional considerations on the scope of the right and potential interferences that complement the four categories already mentioned. He rightly suggests caution should be exercised regarding the myriad ways in which the mind can be affected and potentially altered in respect of the protection the individual can expect under a right to selfdetermination, given the possibility that a broad scope of the right could give rise to ample limitations of the rights of others.28 However, some of Bublitz’s conclusions from this are problematic. He argues that ‘(s)ome forms of inflicting mental harm may even be (ethically) valuable’.29 That might well be the case, but it is not clear what the implications of this should be in human rights terms. The same could be said about some forms of inflicting physical harm, for example in the form of non-consensual but curative medical treatment, but it is rather questionable that such interferences should therefore be excluded from the scope of human rights protection. Instead, in the context of interferences with physical integrity, these issues are 22 23 24 25 26 27

28 29

Ibid., p. 400. Ibid., p. 400. Ibid., p. 400. Ibid., p. 398. Folgerø v Norway (Application no. 15472/02) judgment, 29 June 2007, para. 98. ECtHR, Guide on Article 8 of the European Convention on Human Rights (2018), p.40. www.echr.coe.int/ Documents/Guide_Art_8_ENG.pdf. Bublitz, in this volume, pp. 392f. Ibid., p. 393.

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usually dealt with at the justification stage, i.e. the unwanted and subjectively harmful but from a societal perspective beneficial action would be regarded as an interference with the right to physical integrity, and conflicting rights and interests would then be weighed in order to assess whether the interference is justified.30 It is not obvious why the same should not apply to mental self-determination. Bublitz also suggests that: Protection of the mind must be limited to severe, exceptionally worrisome interferences. Models and doctrines have to be developed that define impermissible actions more concretely and provide workable criteria while observing the setbacks to other freedoms they imply. In fact, one of the main hurdles for recognising the right to mental self-determination seems to be the lack of a plausible and feasible construal of scope and limits.31

It might well be necessary to limit the scope of a right to mental self-determination, but the suggested limitations seem neither convincing nor easily operationalisable. Leaving aside how ‘severe’ and ‘exceptionally worrisome’ can be defined (from whose perspective: the individual concerned, society?), if the right was limited in this way, it would be less protective than the protection currently available under Article 8(1) of the ECHR, which does have a certain severity threshold that depends on context32 but in only very few situations requires a severe interference.33 Indeed, in the context of mental integrity, severe interferences fall under Article 3 of the ECHR, while less severe interferences are protected by Article 8. Bublitz envisages spheres of special protection within a right to mental self-determination, e.g. related to moral, religious or political decision-making.34 This could also be accommodated under Article 8 of the ECHR. The ECtHR has rejected the idea that the protection of the right to private life should be limited to an inner circle, and extends the protection to relationships with the outside world encompassing professional activities.35 However, the Court seems to accept that there can be a special need for protection with regard to the most intimate aspects of private life. In Folgerø v Norway, for example, the Court stated that ‘information about personal religious and philosophical conviction concerns some of the most intimate aspects of private life’,36 and this special importance seems to have been the reason to extend the protection of Article 8 of the ECHR to not having to disclose information about these thoughts. While Article 8(2) of the ECHR allows for limitations on the exercise of the right to private life, it is highly unlikely that this would be any different with regard to a free-standing right to mental self-determination. Human rights are rarely absolute, though the protection under Article 3 of the ECHR provides mental integrity with heightened protection from grave interferences. A right to mental self-determination, just like the right to mental integrity or the broader right to autonomy and self-determination protected by Article 8 of the ECHR, would be subject to limitations in order to protect other interests. Just as with regard to the right to private life that encompasses mental integrity and autonomy, interferences with a right of mental selfdetermination would need to be justified by the state.

30 31 32 33 34 35 36

ECtHR, Jehovah’s Witnesses of Moscow v. Russia (Appl. no. 302/02), judgment, 10 June 2010, paras. 133–141. Bublitz, in this volume, p. 393. ECtHR, Ivan Atanasov v. Bulgaria, (Appl. no. 12853/03), judgment, 2 December 2011, para. 66. ECtHR, López Ostra v. Spain (Appl. no. 16798/90), judgment, 9 December 1994, paras. 51–53. Bublitz, in this volume, p. 398. ECtHR, Niemietz v. Germany (Appl. no. 13710/88), judgment, 16 December 1992, para. 29. ECtHR, Folgerø v. Norway (Appl. no. 15472/02), judgment, 29 June 2007, para. 98.

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All in all, it then seems that a self-standing right to mental self-determination would in all likelihood mirror the protection already afforded under Article 8 of the ECHR. 31.1.2 Existing Protection under other Human Rights Instruments So far it has been argued that a right to mental self-determination is not necessary, at least in the European context where its various aspects can already be guaranteed by the right to private life under Article 8 of the ECHR. At the same time, though, newer human rights treaties like the CRPD and the European Charter seem to separate mental integrity from self-determination. Indeed, both the European Charter and the CRPD recognise a distinct right to mental integrity and dedicate different articles to the protection of physical and mental integrity (Article 3 of the Charter and Article 17 of the CRPD) and to general self-determination in the form of the right to private life or privacy (Article 7 of the Charter and Article 22 of the CRPD). It might be useful to investigate the reasons behind this apparent need to separate integrity from self-determination, but the trend seems to go in the exact opposite direction from that suggested by Bublitz, i.e. to a separation of integrity from autonomy instead of the adoption of a holistic approach. In light of this fragmentation, it is less clear that the argument that the right to mental self-determination can be accommodated by a general right to private life that protects both self-determination and mental integrity can then justify the suggestion that a self-standing right to mental self-determination is obsolete. However, with regard to the European Charter, as Article 52(3) and the explanatory notes to Article 737 make clear, Article 7 on the right to private life corresponds to Article 8 of the ECHR, which includes its interpretation by the ECtHR. Everything that has been said above thus equally applies to the European Charter, with the caveat that Article 3 provides additional protection to physical and mental integrity, particularly in the areas of biology and medicine. In the context of the CRPD, Bublitz’s proposed holistic approach to mental self-determination might provide useful considerations for the different aspects that need to be taken into account when analysing these dispersed rights. But even though the fragmentation might cause difficulties in individual cases, in terms of the umbrella under which a particular violation needs to be addressed (as an integrity or self-determination issue, or both), more important than creating a new right is clarity as to what, precisely, needs protecting under the already existing rights.

31.2 Conclusions Bublitz himself accepts that the right to mental self-determination is largely a combination of already existing rights,38 but suggests that that does not mean that it should therefore not become a self-standing right. While it is hard to argue against the suggested importance of the rights and interests to be protected by a right to mental self-determination,39 this is not sufficient justification for the creation of a new right, as long as the relevant rights and interests are already sufficiently protected through already existing rights, as has been argued in this comment. It is then not really clear what, precisely, the new right would add that the existing rights cannot achieve.

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Text of the explanations relating to the complete text of the Charter as set out in CHARTE 4487/00 CONVENT 50, CHARTE 4473/00. Bublitz, in this volume, p. 402. Ibid., p. 403.

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The arguments presented in this comment do not question the importance of a holistic right to mental self-determination, but rather simply the need for achieving the protection of the relevant rights and interests through a newly created right. While this comment is critical of the proposal in this respect, it needs to be highlighted that Bublitz’s suggestions and analyses are nevertheless highly significant, as they emphasise the importance of a holistic approach to mental self-determination that goes beyond mental integrity or freedom of thought. His contribution is also pertinent because it sheds light on the dearth of conceptual thinking with regard to the scope and limits of such a right. This lack of clarity seems to speak against the creation of a new right rather than in its favour. Indeed, Bublitz’s discussion of the scope of such a right raises many open questions without providing clear answers. For example, according to Bublitz: Recognising a human right to mental self-determination would reverberate in many areas of law and life. Advertisements, interior design of supermarkets, recruitment methods of spiritual sects or virtual reality are domains that warrant further scrutiny. The right may provide grounds for tort claims and lead to the establishment of criminal offences protecting the mind. Last but not least, it may affect how people treat each other’s’ minds in mundane interpersonal interactions.40

The sheer breadth of situations in which a right to mental integrity might potentially become relevant according to this view highlights the importance of further discussion of what, precisely, the contours of such a right should be, and what are its limits. While this is not a reason for not recognising a right to mental self-determination, it shows that the vagueness of the content of the right to mental integrity emphasised by Bublitz would not be overcome by introducing a new right. Indeed, this lack of precision and clarity might speak against proposing a new right, as it might then be more prudent to make use of the existing analytical tools under Article 8 of the ECHR to protect mental self-determination if and when cases arise, and incrementally build sensitivity and expertise by addressing the relevant issues. Particularly in the context of bioethics and bioscience, experience shows that while there is clearly a need to regulate and also to anticipate to some extent new developments, to invent new human rights, or protect rights and interests that are already protected by general rights such as the right to private life, through a specific human rights norm might not always be a positive step. For example, Article 3(2) of the European Charter imposes a particular view on human dignity and, as a consequence, puts in place prohibitions and limitations on public policy and on individual human rights instead of being protective of the latter.41 Caution might then be necessary and new rights should only be considered once their need becomes obvious and robust discussions on the boundaries of the permissible and the impermissible have taken place. While this author is not in favour of a new right to mental self-determination, the academic analysis provided by Bublitz,42 demonstrating the limits of current thinking about mental integrity and self-determination, is crucial for raising awareness of potential gaps in protection and the need to develop tools to address them.

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Ibid., p. 402. S. Michalowski, ‘Article 3  – Right to the Integrity of the Person’, in S. Peers et  al. (eds.), The EU Charter of Fundamental Rights: A Commentary (Oxford: Hart Publishing, 2014). And also the work of others such as M. Ienca and R. Andorno, ‘Towards New Human Rights in the Age of Neuroscience and Neurotechnology’ (2017) 13 Life Sciences, Society and Policy 1 at 5.

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It might of course become apparent that claims that Article 8 can be adapted to show the necessary sensitivity to the many different forms of manipulation, etc., that the mind encounters on a daily basis, or to provide protection to individuals in reaction to new challenges and technologies,43 prove to be unfounded. If that were to become true, it remains to be seen whether new challenges to existing rights require a new right or can be addressed under the existing human rights framework.

43

ECtHR, Guide on Article 8, p. 18.

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32 Rights Related to Enforced Disappearance New Rights in the International Convention for the Protection of All Persons from Enforced Disappearance María Clara Galvis Patiño

32.1 Introduction Enforced disappearances are strictly forbidden by international law.1 Nevertheless, as the United Nations Secretary-General has acknowledged, enforced disappearances are still being committed at an alarming rate in several countries.2 This makes it necessary to continue to consider enforced disappearance a priority for the international community and, in particular, for the protection of victims of it. Because new practices of enforced disappearance emerge involving not only state agents or individuals but also non-state agents,3 the international community faces the challenge of extending the protection to new rights and to a broader universe of victims. In addition to the rights that were initially protected, other rights have arisen. The victims and the international community gained greater knowledge of the elements that both define and enable enforced disappearance and of its effects. These elements show that the issue of protection by international human rights bodies and by the international community is a process in constant evolution. Keeping this in mind, I  will approach the question regarding the new rights related to enforced disappearance by placing those rights, for the purposes of this chapter, in the context of the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED or the Convention), and taking into consideration the jurisprudence of the Committee on Enforced Disappearance (the CED or the Committee). I shall divide this chapter into two sections. The first is related to the process of development of the rights related to enforced disappearance before the Convention, and the second identifies the new rights that emerge from this Convention. The first section helps us better understand

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International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), New York, 20 December 2006, in force 23 December 2010, 2716 UNTS 3, Art. 1.1; UNGA, Report of the Secretary General on the International Convention for the Protection of All Persons from Enforced Disappearance, 3 August 2016, UN Doc. A/71/278, para. 28, and IACtHR, Case Goiburú and Others v. Paraguay (Merits, Reparations and Costs), 22 September 2006, Ser. C, No. 153, para. 84. UNGA, Report of the Secretary General, UN Doc. A/71/278, para. 28. From March 2012 to August 2019 the Committee on Enforced Disappearance (CED) had issued 770 urgent actions based on Art. 30 of the ICCPED. According to these actions, the largest number of reports to the CED of persons who have disappeared are from Mexico and Iraq. HRC, Report of the Working Group on Enforced or Involuntary Disappearances, 28 July 2016, UN Doc. A/HRC/33/ 51, para. 115.

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the Convention’s place in the process of emergence and recognition of the rights related to enforced disappearance today.

32.2 The Process of Development of Rights Related to Enforced Disappearance In order to understand this process, it is important to remember, first, the way in which the concept of enforced disappearance emerged in international law. Second, the way in which the international community and international human rights protection mechanisms gradually developed norms that recognise rights related to enforced disappearance. 32.2.1 The Emergence of the Concept of Enforced Disappearance in International Law The Inter-American Court of Human Rights (the IACtHR or the Court), in its first judgment in 1988, declared: Disappearances are not new in the history of human rights violations. However, their systematic and repeated nature and their use not only for causing certain individuals to disappear, either briefly or permanently, but also as a means of creating a general state of anguish, insecurity and fear, is a recent phenomenon. Although this practice exists virtually worldwide, it has occurred with exceptional intensity in Latin America in the last few years.4

The first time the Inter-American Commission on Human Rights (the IAComHR or the Commission) referred to ‘the persons allegedly’ or ‘supposedly disappeared’ was in 1974, reflecting in its annual report on the human rights situation in Chile, after a visit in October 1973 and on the basis of complaints received.5 In that report the Commission did not venture a characterisation of this phenomenon but recorded the complaints received, which made evident the different patterns of disappearance. Then, in its annual report for 1977, the Commission defined the elements of enforced disappearances that would subsequently be enshrined in the Inter-American Convention on Forced Disappearance of Persons6 and in the ICPPED.7 There have already been many recorded cases of ‘missing persons’, that is persons who, according to witnesses and other evidence, have been detained by military or police authorities but whose detention is denied by the authorities and whose location is unknown. Added to the illegal deprivation of freedom in these instances is the anguish of relatives and friends who do not know whether the missing persons are dead or alive, and who are unable to avail themselves of the remedies established under law or to lend those detained material and moral assistance.8 In this same report, the Commission highlighted the human rights of the disappeared being violated, as follows:

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IACtHR, Velásquez-Rodríguez v. Honduras (Merits), 29 July 1988, Ser. C, No. 4, para. 149. IAComHR, Annual Report 1974, OEA /Ser.L/V/II.34, Doc. 31 rev.1, 30 December 1974, Part II (text available in Spanish only). In 1974 the Commission published its first country report on Chile: IACmHR, Report on the Status of Human Rights in Chile, OAS/Ser.L/V/II.34, Doc. 21, 25 October 1974. Art. II of the Inter-American Convention on Forced Disappearance of Persons, Belem do Parà, 9 June 1994, in force 28 March 1996. Art. 2 of the ICPPED. IAComHR, Annual Report 1976, OAS/Ser.L/V/II.40, Doc. 5 corr.1, 7 June 1977, Part II. These elements of enforced disappearance were taken up years later by the Commission in its first country report on Argentina in 1980, where it described the practice of enforced disappearance:  IAComHR, Report on the Situation of Human Rights in Argentina, OAS/Ser.L/V/II.49, Doc. 19, 11 April 1980, Chapter III.A., para. 1.

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The status of ‘missing’ seems to be a comfortable expedient to avoid application of the legal provisions established for the defense of personal freedom, physical security, dignity and human life itself. In practice, this procedure nullifies the legal standards established in recent years in some countries, to avoid illegal detentions and the use of physical and psychological harshness against persons detained.9

The first report of the Working Group on Enforced or Involuntary Disappearances (WGEID) in 198110 was taken up also by the IACtHR in its judgment in the Velásquez-Rodríguez v. Honduras case of 1988, in which the IACtHR expressed that ‘[t]he forced disappearance of human beings is a multiple and continuous violation of many rights under the [Inter-American] Convention that the States Parties are forced to respect and guarantee’.11 In its annual reports, the Commission also made advances in the identification of the effects of enforced disappearance and on the patterns of enforced disappearance. Such patterns were fundamental for the subsequent drafting of norms regarding the rights related to enforced disappearance. For example, in 1979 the Commission referred for the first time to the phenomenon of disappeared girls and boys in the following terms: A particularly serious aspect of this problem is the fact, which has been repeatedly brought to the attention of the Commission, that children born to women who have ‘disappeared’ while pregnant, and very young children kidnapped with their parents, have not been placed into the custody of their legitimate guardians – grandparents, aunts or uncles, or other family members – but rather placed in institutions and in some cases, given up for adoption either in the same country or abroad.12

But it was only in 1984 that the Commission referred to the victims of disappearance, whose elements it had begun to identify and characterise in 1977, as ‘detained-disappeared’.13 In its annual report for 1985 the Commission finally referred to this phenomenon as enforced disappearance.14 A clearer characterisation of the phenomenon of enforced disappearance in the United Nations System was also made by the WGEID in its first report of 1981. The number and type of cases received in the first year of its mandate allowed the WGEID to hold that the practice consisted in the arrest, detention or abduction of persons by personnel belonging to an organ of government, or controlled by the government, or operating with the complicity of the government, and the government concerned neither accepted responsibility nor accounted for the actions of these personnel.15 These elements were to be enshrined in the ACHR and in the ICPPED. In addition, the WGEID was the first international organ to say that a wide range of human rights of victims and their families may be denied or infringed by enforced disappearance: the right to liberty and security of the person, the right to humane conditions of detention and freedom from torture, and the right to life. As mentioned before, this part of the 1981 WGEID

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IAComHR, Annual Report 1976, Part II. Commission on Human Rights, Report of the Working Group on Enforced or Involuntary Disappearances, 26 January 1981, UN Doc. E/CN.4/1435, para. 184. IACtHR, Velásquez Rodríguez v. Honduras (Merits), 29 July 1988, Ser. C, No. 4, para. 155. See also IACtHR, Goiburú and Others v. Paraguay (Merits, Reparations and Costs), 22 September 2006, Ser. C, No. 153, paras. 82–83. IAComHR, Annual Report 1978, OAS/Ser.L/V/II.47, Doc. 13 rev.1, 29 June 1979, Part II. IAComHR, Annual Report 1980–1981, OAS/Ser.L/V/II.54, Doc. 9 rev.1, 16 October 1981, Chapter V. IAComHR, Annual Report 1984–1985, OAS/Ser.L/V/II.66, Doc. 10 rev.1, 1 October 1985, Chapter IV. Economic and Social Council. Commission on Human Rights. Report of the Working Group on Enforced or Involuntary Disappearances. UN Doc. E/CN.4/1435, 26 January 1981, para. 3.

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report served as an expression of the multiple forms and continuous nature of enforced disappearance for the IAComHR. 32.2.2 Developing Norms that Recognise the Rights Related to Enforced Disappearance The emergence of the concept of enforced disappearance in international human rights law entails, beyond the characterisation of the phenomenon, the introduction or emergence of rights related to enforced disappearance. Some of these rights can already be found in the reports of the IAComHR and in resolutions of United Nations bodies at the end of the 1970s. Among them, for example, is the right to rigorous, rapid and impartial investigation of the disappearance to identify and punish those responsible. However, the process of emergence and recognition of the rights related to enforced disappearance was first initiated through the jurisprudence of the international human rights instruments, and led to the ICPPED in December 2006. 32.2.2.1 Recognition of the Rights Related to Enforced Disappearance in the Jurisprudence of the Human Rights Protection Bodies The first decisions of the Human Rights Committee (HRC) and of the IACtHR are important because they made visible some practices of disappearance which, although they were not treated as acts of enforced disappearance at that point in time, constitute clear precedents of types of that phenomenon that are today forbidden by the Convention. Reports by the IAComHR and the WGEID In 1981 the IAComHR went back to Resolution 510 of 27 November 1980 of the OAS General Assembly to point out that it is the responsibility of governments: that central records be established to account for all persons that have been detained, so that their relatives and other interested persons may promptly learn of any arrest that may have been made; to request that the arrests be made only by competent and duly identified authorities, and that the arrested persons be kept in premises designed for that purpose.16

In the same year the WGEID expressed its agreement with the IAComHR with regard to the responsibility of governments for keeping central records, having competent and identified authorities in charge of arrests and premises designed for detention.17 In these reports of the Commission and the WGEID, several of the rights related to enforced disappearance that would later be recognised in the international instruments adopted during the 1990s, and also in the Convention, were already identified. In particular: • the right to be detained in places that are known and destined for that purpose; • the right to be detained by a duly identified competent authority; • the right of relatives to be informed rapidly about the detention of their loved one. Decisions of the HUMAN RIGHTS COMMITTEE The first opinions regarding cases of disappeared persons date back to 1982 and are related to Uruguay. In its Communication No. R.7/30 of 29 March 1982,18 the Human Rights Committee gave its opinion on the disappearance 16 17

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IAComHR, Annual Report 1980–1981, Chapter V. United Nations. Economic and Social Council. Human Rights Commission. Report of the Working Group on Enforced or Involuntary Disappearances. UN Doc. E/CN.4/1492, 31 December 1981, para. 184. HRC, Irene Bleier Lewenhoff and Rosa Valiño de Bleier v. Uruguay, Communication No. R.7/30, 29 March 1982.

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of Mr Eduardo Bleier, detained in October 1975 and whose disappearance was not recognised by the Uruguayan authorities. The next communication regarding a case of a disappeared person dates from 1983. In its Communication No. 107/1981,19 the Human Rights Committee referred to the disappearance of Elena Quinteros Almeida, who was detained in June 1976 and whose detention was also denied by the Uruguayan authorities. It is important to point out that, in this case, the Human Rights Committee referred to the suffering and anguish of the mother of the victim of disappearance as a violation of Article 7 of the International Covenant on Civil and Political Rights.20 In these two opinions, several rights related to enforced disappearance begin to emerge, among them: • the right to the locating and liberation of the disappeared person; • the right to compensation to the family members of the victim of disappearance (who are themselves considered victims of the violation of the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment); • the right to guarantees of non-repetition of the disappearance. It is worth mentioning that in the cases in which the Human Rights Committee gave its opinion, the detained persons remained confined and isolated at an unknown location for several months while the authorities refused to acknowledge such detentions. Those persons remained disappeared throughout the investigations. An example of these cases21 is that of Mr Sergio Rubén López Burgos, who was abducted in Buenos Aires in July 1976 by the security and intelligence forces of Uruguay, supported by Argentinian paramilitaries, and kept in secret detention for more than two weeks. Then Mr López Burgos, together with other Uruguayan citizens, was secretly and illegally transferred to Uruguay, where he was kept incommunicado by the security forces in an unofficial location for three months. While detained in Argentina and Uruguay he was tortured. The Human Rights Committee ruled that Uruguay had violated the ICCPR by having tortured, arbitrarily arrested and detained Mr López, among other violations. However, in these cases the Human Rights Committee did not refer in its conclusions to disappearance as such, but rather to the arbitrary detention and the conditions of isolation. It is important to point out that this practice, described in many cases known to the Human Rights Committee and also to the IAComHR22 in the 1980s, corresponds to that of secret detention, now also expressly banned by the ICCPED. Rulings of the Inter- American Court of Human Rights The first ruling by the IACtHR regarding a case of enforced disappearance dates back to 1988. As I  pointed out earlier, in the judgment for the Velásquez-Rodríguez v. Honduras case the Court assumed that enforced disappearance constitutes a multiple and continuing violation of several rights (to life, to personal integrity, to freedom and to personal security). These violations are caused by

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HRC, Maria del Carmen Almeida de Quinteros v. Uruguay, Communication No. 107/1981, 15 October 1982. International Covenant on Civil and Political Rights, New York, 19 December 1966, in force 23 March 1976, 999 UNTS 171. HRC, Delia Saldías de López v.  Uruguay, Communication No. R.12/52, 29 July 1981, para. 2.2. Similar facts are narrated, among others, in the following comunications:  Luciano Weinberger Weisz v.  Uruguay, No. R.7/28, 29 October 1980; Alice Altesor and Víctor Hugo Altesor v. Uruguay, No. R.2/l0, 29 March 1982; Elsa Cubas v. Uruguay, No. R.17/70, 1 April 1982, and Hugo Gilmet Dermit v. Uruguay, No. 84/1981, 21 October 1982. See IAComHR, Annual Report 1981–1982, OAS/Ser.L/V/II.57, Doc. 6 rev.1, 20 September 1982, Chapter V.

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one single act:  enforced disappearance. Thus, for example, prolonged isolation and coercive solitary confinement were treated as constitutive parts of the disappearance and not as independent acts. In this ruling, the Court also made progress with the definition of the elements of enforced disappearance by pointing out the following in relation to the right to life: ‘The practice of disappearances often involves secret execution without trial, followed by concealment of the body to eliminate any material evidence of the crime and to ensure the impunity of those responsible.’23 In this judgment the Court also identified practices or patterns of disappearance that were of particular importance in the subsequent drafting of norms aimed at deterring or preventing acts of enforced disappearance, and it made progress with the definition of what years later would become recognised as the right of the victims to the truth. Finally, like the Human Rights Committee, the IACtHR recognised the right of the victim to reparation, understood in this first judgment as the payment of fair compensation.24 32.2.2.2 Adoption of International Instruments on Enforced Disappearance of Persons The first adopted instrument that explicitly recognises the rights related to enforced disappearance is the Declaration on the Protection of All Persons from Enforced Disappearance.25 After its approval, the then Commission on Human Rights asked the WGEID to take into account, as part of its mandate, the provisions of the Declaration.26 It is important to remember this mandate, since it would be through the application of the Declaration that the Working Group would develop the rights related to enforced disappearance in subsequent years. Among those rights are the right to recognition of the legal status of the disappeared person, the right to liberty and security of the person, the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment, and the right to life.27 Likewise, the following provisions were also included in the Declaration: • the right not to be expelled, turned back or extradited to another state when there are substantial grounds to believe that the person runs the risk of becoming a victim of enforced disappearance;28 • the right to be held in an officially recognised place of detention, and to be brought before a judicial authority promptly after detention; • the right to a prompt and effective judicial remedy as a means of determining the whereabouts or state of health of persons deprived of their liberty and/or identifying the authority ordering or carrying out the deprivation of liberty.29 The Declaration also recognises other rights for families, relatives and other persons with reasonable interests (lawyers):

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IACtHR, Velásquez-Rodríguez v. Honduras, para. 157. Ibid., para. 189. UNGA, Resolution 47/133 on the Declaration on the Protection of All Persons from Enforced Disappearance, 18 December 1992, UN Doc. A/RES/47/133. See in this respect Commission on Human Rights, 49th Session: Questions of Enforced or Involuntary Disappearances, 7 January 1993, UN Doc. E/CN.4/1993/25, para. 15. Art. 1 of the Declaration on the Protection of All Persons from Enforced Disappearance. Ibid., Art. 8. Ibid., Art. 9.

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• to receive promptly accurate information regarding the detention of the person concerned and about the place or places where the detention is carried out, including places of transference;30 • to report the facts of the enforced disappearance before a competent and independent state authority so that an exhaustive and impartial investigation can proceed immediately;31 • to be informed of the results of such an investigation.32 With regard to the victims of acts of enforced disappearance and their families, the Declaration recognises also their right to reparation, to receive adequate compensation, and to be provided with the means to guarantee as complete a rehabilitation as possible.33 The Inter-American Convention on Forced Disappearances of Persons was signed in 1994. Just like the Declaration, the Convention establishes an absolute ban against enforced disappearance. After the adoption of the Declaration and the taking effect of the Inter-American Convention, the IACtHR recognised in its jurisprudence several rights related to enforced disappearance. Among them are the right of the families of the victims of enforced disappearance to an investigation of the facts, judicial process and appropriate sanctions34 against those responsible, as well as the right of the relatives to their psychological and moral integrity.35 In decisions from 2000, before the International Convention for the Protection of All Persons from Enforced Disappearance was adopted, the IACtHR had already made progress in identifying other rights, for example the right that the person’s detention be recognised, and it reiterated the jurisprudence included in its first ruling about the right of family members to be told the whereabouts of the victim of disappearance. The IACtHR also recognised explicitly the right of the victims of enforced disappearance to the truth in a ruling dating from 2005.36 Thus the IACtHR recognised the right of the victims of enforced disappearance to a legal personality.37 In addition, and also after the adoption of ICCPED, the Court recognised the right to an identity for children detained with their parents or born during their parents’ captivity, who were seized by the perpetrators of the enforced disappearance of their parents, and as such are children who were forcibly disappeared.38 The right of children to an identity is formulated explicitly in Article 25(4) of the ICCPED, and the CED has referred to that right in its final observations to country reports. In this sense, it could be said that we are dealing with a new right related to enforced disappearance.

32.3 The New Rights Related to Enforced Disappearance in the International Convention for the Protection of All Persons from Enforced Disappearance Taking into consideration the process of development and recognition of the rights related to enforced disappearance, three approaches can be considered in order to define which rights in the ICCPED can be considered as new. The first considers that new rights will not have been 30 31 32 33 34 35 36

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38

Ibid., Art. 11. Ibid., Art. 13(1). Ibid., Art. 13(4). Ibid., Art. 19. See IACtHR, Blake v. Guatemala (Merits), 24 January 1998, Ser. C, No. 36, para. 97. Ibid., para. 114. IACtHR, Gómez Palomino v. Peru (Merits, Reparations and Costs), Judgment of 22 November 2005, Ser. C No. 136, para. 78. IACtHR, Anzualdo Castro v. Peru (Preliminary Objection, Merits, Reparations and Costs), Judgment of 22 September 2009, Ser. C No. 202, paras. 87–101. See IACtHR, Gelman v. Uruguay (Merits and Reparations), 24 February 2011, Ser. C, No. 221, paras. 119–132.

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recognised by any other treaty before the adoption of the Convention. The second considers that new rights will not have been recognised in any other international law instrument different from a treaty, for example a declaration, a resolution or the norms of customary international law, before the adoption of the Convention. And a third approach considers that new rights will not have been previously recognised in any international law instrument, nor in the jurisprudence of the human rights protection bodies, before the adoption of the Convention. My approach to the subject lies between the second and the third approaches, to the extent that I consider that the ICCPED recognises rights that previously were not formulated explicitly either in another international instrument or in the jurisprudence of the international human rights protection bodies. From this perspective, I will refer only to three rights that I find most innovative: the right not to be forcibly disappeared, the right not to be secretly detained and the right of the victims of (enforced) disappearance to be searched for. According to my approach, the Convention recognises other new rights, among them, as I mentioned previously, the right of disappeared children to an identity, as recognised in Article 25, and the rights recognised in Article 24. The particularly innovative rights in Article 24, other than the rights of the victims (in the definition of the Convention), are to the search for, location of and release of the disappeared person, and the right for appropriate measures to be adopted with regard to the legal situation of disappeared persons whose fate has not been established, and the legal situation of their relatives, in areas such as social protection, economic matters, family law and property rights. Also new (with regard to the norms and the jurisprudence prior to the Convention) are the right to establish and participate freely in organisations and associations whose objective is to contribute to clarifying the circumstances of enforced disappearances and the fate of disappeared persons, and the right of the victims of enforced disappearance to receive assistance. However, in this chapter I will limit myself to the three new rights that I mentioned earlier. The CED has referred in broad terms to these rights in the final observations to country reports and in its views in the case of Estela Deolinda Yrusta and Alejandra del Valle Yrusta v. Argentina. In this sense, the innovation in these rights lies not only in their explicit recognition in the ICCPED – a recognition that had not been expressed in those terms in any other international instrument – but also in the way in which the CED specifies both the content of these rights and the relevant obligations and duties incumbent upon states. As will be seen in the following paragraphs, the details of the content and the scope of each of the rights can be found in the developments made by the CED in light of specific situations contained in country reports, and in the links that the Committee has established between the articles that recognise the right and other articles of the Convention. 32.3.1 The Right Not to Be Forcibly Disappeared With respect to the right not to be forcibly disappeared, the ICCPED is very clear when, in Article 1(1) it states categorically that ‘[n]o one shall be subjected to enforced disappearance’. Although this right had been recognised since the 1980s in the jurisprudence of international bodies for the protection of human rights, the novelty of the Convention is the recognition of the right in a treaty, that is in a hard law norm. This recognition, implied in the absolute prohibition of the conduct, in addition to having an important symbolic value, gives legal certainty and therefore strengthens the protection of the right. In line with the norm, the CED has expressed its concern when the domestic law of states does not establish explicitly that the prohibition of enforced disappearance is absolute and therefore

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applies even under exceptional circumstances such as state of war, threat of war, internal political instability or any other public emergency. In such cases, the Committee has recommended that the state take ‘the legislative measures necessary to specifically incorporate into domestic law an absolute prohibition of enforced disappearance at all levels, in line with Article 1(2) of the Convention’.39 The CED has also recommended that the state adopt a provision ‘explicitly affirming that no exceptional circumstances of the kind described in Article 1 of the Convention may be invoked to justify the offence of enforced disappearance’.40 Likewise, the CED has called attention to the duty of states to have available precise statistical information about the number of disappeared persons in order to understand the true magnitude of the situation, and also with the purpose of adopting public policies that will make it possible to prevent, investigate, sanction and effectively eradicate enforced disappearance. To that end, the Committee has pointed out, for example, that the state should take the steps necessary to establish a single nationwide register of disappeared persons which generates accurate statistics that can be used to devise comprehensive and coordinated public policies for the prevention, investigation, punishment and elimination of this abhorrent crime. The register should, as a minimum:  (a) provide exhaustive and detailed information about all cases of disappeared persons, including information about the sex, age and nationality of the disappeared persons and the place and date of their disappearance; (b) include information that can be used to determine whether the case in question is one of enforced disappearance or a disappearance that occurred without any involvement of State agents; (c) facilitate the generation of statistical data on cases of enforced disappearances, including cases that have been clarified; and (d) contain information based on clear, consistent criteria and be updated on a regular basis. In this context, the State party should use the fact that the regulations implementing the Act on the National Register of Missing and Disappeared Persons are still pending adoption as an opportunity to ensure that the aforementioned criteria are met. It should also adopt the necessary measures to guarantee that the authorities responsible for entering the relevant data do so in a consistent and exhaustive manner, immediately after being informed of a disappearance.41

The explicit recognition in the ICCPED of the right not to be subjected to enforced disappearance has allowed the Committee not only to reaffirm the absolute prohibition of the disappearance of persons, but also to indicate to states parties the precise duties aimed at making the phenomenon visible, preventing it and eradicating it. 32.3.2 The Right Not to Be Secretly Detained With regard to the right not to be secretly detained, the Convention is equally categorical when it establishes, in Article 17(1) that ‘[n]o one shall be held in secret detention’. In this case, the 39

40

41

CED, Concluding observations on the report submitted by Bosnia and Herzegovina under Article 29(1) of the Convention, 3 November 2016, UN Doc. CED/C/BIH/CO/1, para. 12; CED, Concluding observations on the report submitted by Tunisia under Article 29(1) of the Convention, 25 May 2016, UN Doc. CED/C/TUN/CO/1, para. 13. CED, Concluding observations on the report submitted by France under Article 29(1) of the Convention, 8 May 2013, UN Doc. CED/C/FRA/CO/1, para. 11. Similarly, CED, Concluding observations on the report submitted by Senegal under Article 29(1) of the Convention, 18 April 2017, UN Doc. CED/C/SEN/CO/1, para. 12. CED, Concluding observations on the report submitted by Mexico under Article 29(1), of the Convention, 5 March 2015, UN Doc. CED/C/MEX/CO/1, para. 18. Similarly, CED, Concluding observations on the report submitted by Iraq under Article 29(1) of the Convention, 13 October 2015, UN Doc. CED/C/IRQ/CO/1, para. 12. See also CED, Concluding observations on the report submitted by Colombia under Article 29(1) of the Convention, 27 October 2016, UN Doc. CED/C/COL/CO/1, para. 14.

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right, as such, had not been recognised before in other international instruments. Its first recognition is in the Convention. This has the importance of making visible and prohibiting absolutely a practice that had been identified by the human rights protection bodies, but whose prohibition had not been recognised in terms of rights. Its recognition contributes to the prevention of enforced disappearance and to greater protection of persons from this crime. With respect to this right, the Committee has made broad and detailed observations in which it has identified secret detention practices and has indicated clear measures that states must take to avoid, suppress and sanction these practices. Thus the CED highlighted the duty of states to guarantee that ‘all deprivations of liberty, without exception, are entered in uniform registers and/or records, which include, as a minimum, the information required under Article 17(3) of the Convention’.42 Those records should, furthermore, be regularly subjected to verification, and in the event of irregularities the state must duly sanction all officials responsible, according to the law.43 Additionally, the CED has insisted that the state should guarantee that ‘any person with a legitimate interest has the right and a real possibility of access to information concerning the disappeared persons referred to in Article 17(3), in accordance with Article 18(1)’.44 Furthermore, the state should guarantee that any person with a legitimate interest ‘may lodge an appeal with the court to obtain the relevant information’.45 Likewise, the CED has declared that the state should adopt ‘all the necessary measures, including legislative, to ensure that all persons detained in the national territory are immediately placed under judicial supervision’.46 However, the Committee has identified the existence of practices of secret detention in some states. In such cases, based on the explicit recognition of the right, the CED has specified to the states the specific guarantees they must adopt in order to eliminate those practices. Where the practice of secret detention exists, the CED has stated that the state has the additional duty to: investigate all allegations concerning secret detention and ensure that: (a) any existing secret detention facility or place where people are held in secret detention be immediately closed or converted into regular detention centres in accordance with the Convention and relevant international standards; (b) those involved in holding people in secret detention are brought to justice and sanctioned in accordance with the gravity of their acts; and (c) victims receive adequate reparation, including rehabilitation.47

The Committee found an act of secret detention in the case of Yrusta v.  Argentina, which concerned the transfer of Roberto Agustín Yrusta from one detention centre to another without the prison authorities having answered the requests for information from family members about his whereabouts, and the lack of information regarding what occurred in the more than seven days during which the whereabouts of Mr Yrusta remained unknown. In addition to pointing out that the acts Mr Yrusta was subjected to constituted an enforced disappearance,48 42 43

44

45 46 47 48

CED, Concluding observations on Tunisia, para. 30 (c). CED, Concluding observations on the report submitted by Germany under Article 29(1) of the Convention, 10 April 2014, UN Doc. CED/C/DEU/CO/1, para. 19. See also CED, Concluding observations on the report submitted by Argentina under Article 29(1) of the Convention, 12 December 2013, UN Doc. CED/C/ARG/CO/1, para. 29(d). CED, Concluding observations on the report submitted by Burkina Faso under Article 29(1) of the Convention, 24 May 2016, UN Doc. CED/C/BFA/CO/1, para. 34. CED, Concluding observations on France, para. 33. CED, Concluding observations on Argentina, para. 25. Ibid., para. 30. CED, Views approved by the Committee under Article 31 of the Convention for communication No. 1/2013 in the case of Estela Deolinda Yrusta and Alejandra del Valle Yrusta v. Argentina, 12 April 2016, UN Doc. CED/C/10/D/1/ 2013, para. 10.4.

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the CED highlighted that ‘States parties are therefore under a special obligation to safeguard rights established in the Convention of persons deprived of their liberty and to take effective measures to ensure, inter alia, that the deprivation of liberty will not at any time become secret detention or an enforced disappearance’.49 And in its recommendations, the CED asked the state to ‘[a]dopt all necessary measures to enforce the guarantees of non-repetition stipulated in Article 4(5)(d) of the Convention, including compiling and maintaining registers that meet the requirements of the Convention and to ensure that the relevant information is accessible to all persons with a legitimate interest therein, as set out in Articles 17 and 18 of the Convention’.50 Likewise, in the face of practices that the CED has identified as arbitrary relocations from detention centres or to cover up punishments that are not applied through standard procedures, it has recommended that the state ‘should take all the necessary steps, including legislative, to ensure that all transfers are subject to judicial control and that they are only carried out with the knowledge of the detainee’s counsel and family or other relatives’. The Committee also calls on the state party ‘to put in place the inspections and oversight necessary to prevent unlawful transfers and to ensure that such practices are appropriately punished’.51 With the purpose of protecting the right not to be secretly detained, the CED has also recommended the implementation of independent mechanisms for the monitoring of places of detention that ‘have effective and immediate access to all places of deprivation of liberty throughout the national territory’.52 Likewise, with regard to practices found in some states relating to the solitary confinement of persons detained for acts of terrorism or for being part of an armed gang and who, during their confinement, are not given the right to select a lawyer of their choice, to speak in private with the court-appointed lawyer or to notify their detention or the place where they are being held to a person of their choice, the CED has recommended that the state ‘adopt the necessary legislative and other measures to ensure that all persons, regardless of the offence with which they are charged, enjoy all the safeguards provided for in the Convention, in particular in Article 7, and in other relevant human rights instruments’.53 Also with regard to the solitary confinement of detained persons, the CED has stated explicitly that ‘any person in pretrial or administrative detention should have the right to communicate with the outside world and that this right should not be restricted beyond 48 hours’.54 In such cases, the CED has also stressed that the state should adopt the necessary measures to guarantee that their relatives or persons of their choice, or, in the case of foreigners, their consular authorities, are informed about the deprivation of their liberty and the place where they are being held.55 With regard to normative acts that allow the suspension of the right of habeas corpus when a state of exception or state of siege is declared, the Committee has recommended explicitly to the state that it ‘should adopt the necessary measures to establish that the right to apply for habeas corpus may be neither suspended nor restricted under any circumstances, even

49 50 51

52 53

54 55

Ibid., para. 10.5. Ibid., para. 12(e). CED, Concluding observations on Argentina, para. 27. See also CED, Concluding observations on the report submitted by Uruguay under Article 29(1) of the Convention, 8 May 2013, UN Doc. CED/C/URY/CO/1, para. 28. CED, Concluding observations on Argentina, para. 31. CED, Concluding observations on the report submitted by Spain under Article 29(1) of the Convention, 12 December 2013, UN Doc. CED/C/ESP/CO/1, para. 24. CED, Concluding observations on France, para. 31. CED, Concluding observations on the report submitted by Kazakhstan under Article 29(1) of the Convention, 26 May 2016, UN Doc. CED/C/KAZ/CO/1, para. 20.

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when a state of emergency or siege has been declared, and to guarantee that any person with a legitimate interest may initiate the procedure’.56 Furthermore, with regard to the detention of persons in another country by the armed forces of a state in a state of war or foreign operations, the CED has recommended to the state that ‘in the event of an intervention of the armed forces in crisis situations, delays in communication to the chain of command regarding the capture or detention of persons should be limited exclusively to cases in which the detained persons’ own security is at stake and, in any case, should be in keeping with the Convention’.57 The Committee has also recommended that in such cases the state ‘should establish a protocol for the transfer of detainees between States that is consistent with international law’.58 The recognition of the right not to be held in secret detention is one of the most important advances of the Convention in the protection against enforced disappearance of persons. This has allowed the Committee to visualise numerous practices that seem to be rooted in states that not only favour the disappearance of persons but are, in themselves, forms of enforced disappearance. The Yrusta case illustrates that enforced disappearance can occur anywhere, including in legal detention centres. The awareness of these practices as forms of enforced disappearance has also allowed the Committee to indicate to states very precise duties that should lead to their eradication and prevent them occurring in the future. 32.3.3 The Right of the Disappeared Person (and of His/Her Relatives) to Be Searched For Finally, the Convention recognises expressly, in Article 24(3), the right of the victims to the search for, location and release of the disappeared person and, in the event of death, to locate, respect and return their remains. Although, before the entry into force of the Convention the search for and location of the disappeared person or his/her remains had been considered by international adjudication bodies as a central aspect of the right to truth, and also as a fundamental reparation measure in cases of enforced disappearance, it had not been recognised as a right in itself. The novelty of the Convention is that it recognises that the right of the disappeared victim to be searched for and located is also a right of the disappeared person’s relatives. The Convention says that the right to know the truth, to which each victim is entitled, includes knowing the fate of the disappeared person (Art. 24.2). With respect to this right, the CED has highlighted that, in view of the continuous nature of enforced disappearance, ‘in principle and unless there is concrete evidence to the contrary, there is no reason to presume that a disappeared person has died so long as his or her fate has not been determined’.59 Likewise, the Committee has said that ‘the search for persons who have been the victims of enforced disappearance and efforts to clarify their fate are obligations of the State even if no formal complaint has been laid’, and that relatives ‘are entitled, inter alia, to know the truth about the fate of their disappeared loved ones’. In this connection, the Committee has recommended that the state party ‘should adopt all the necessary measures, including the allocation of sufficient human, technical and financial resources, to search for and clarify the fate of disappeared persons’.60 56 57 58 59

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CED, Concluding observations on Spain, para. 25. CED, Concluding observations on France, para. 29. Ibid. CED, Concluding observations on the report submitted by Ecuador under Article 29(1) of the Convention, 19 April 2017, UN Doc. CED/C/ECU/CO/1, para. 21. CED, Concluding observations on Spain, para. 32.

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The CED has expressed its concern about the difficulties that the states face, in practical terms, when searching for disappeared persons and identifying remains. In that regard, the CED has recommended, for example, that the state: (a) Ensure in practice that, when a disappearance is reported, a search is initiated automatically, without delay; that practical, effective search measures are adopted in order to increase the chances of finding the person alive; and that the search is continued until the fate of the disappeared person is established; (b) Intensify its efforts to locate bodily remains; enhance the Genetic Profile Bank, in particular by conducting extensive campaigns to collect ante-mortem information and genetic samples from disappeared persons’ relatives, with a special focus on rural areas; and expedite the identification and handover of the exhumed remains; (c) Adopt more effective measures to ensure coordination, cooperation and data crosschecking between the agencies responsible for searching for disappeared persons and, in the event of death, for identifying their remains, and see to it that they have the necessary qualified personnel and economic and technical resources; (d) Redouble its efforts to ensure that all relevant authorities receive regular, specialised training on the measures provided for in the existing regulatory framework pertaining to the search for disappeared persons and, in the event of death, on handling with respect and returning their remains, in particular, the correct implementation of the National Plan on the Search for Disappeared Persons and the Urgent Search Mechanism; (e) Ensure that searches are conducted by the competent authorities with the active involvement of the relatives of the disappeared person where necessary; (f) Intensify its efforts to ensure that all actions to identify and return remains duly take into account the traditions and customs of the peoples or communities to which the victims belong, in particular indigenous peoples or Afrodescendent communities.61 Furthermore, the CED has stated that states should consider the possibility of ‘setting up an ad hoc body responsible for searching for persons who were the victims of enforced disappearance and endowed with sufficient powers and resources effectively to perform its role’.62 The right to be searched for, as a right of the disappeared victim and his or her relatives, is central to the ICCPED. This right obliges the state to search for the disappeared person, assuming that she or he is alive. This has implications for the specific duties that arise for states, such as creating mechanisms devoted to the search procedure and training specialised personnel.

61 62

CED, Concluding observations on Colombia, para. 26. See also CED, Concluding observations on Iraq, para. 34. CED, Concluding observations on Spain, para. 32. The Working Group on Enforced Disappearances has said that states need to establish mechanisms and specialised organs for searching for the disappeared. In this respect see HRC, Report of the Working Group on Enforced or Involuntary Disappearances on its mission to Peru, 8 July 2016, UN Doc. A/HRC/33/51/Add.3, para. 79; and HRC, Report of the Working Group on Enforced or Involuntary Disappearances on its mission to Turkey, 27 July 2016, UN Doc. A/HRC/33/51/Add.1, para. 71.

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33 The Emergence of the Right Not to Be Forcibly Disappeared Some Comments Kohki Abe

33.1 Introduction María Clara Galvis Patiño suggests that the emergence of new rights related to enforced disappearance is a process in constant evolution.1 Certainly, this process is a normative response to new patterns and practices that require new ways of prevention and suppression. Among the new rights highlighted in her chapter focusing on the International Convention for the Protection of All Persons from Enforced Disappearance (ICCPED)2 are the right not to be forcibly disappeared, the right not to be secretly detained and the right to be searched for. As a commentator, I will revisit the evolutionary process of these rights, the right not to be forcibly disappeared in particular, and address the obligation/responsibility issues arising from a contemporary development of transborder enforced disappearances.

33.2 The Practice of Enforced Disappearance as a Global Phenomenon The modern genesis of enforced disappearance dates back to the period of the Second World War when, under the Nazi’s decree of Nacht und Nebel, thousands of people were transferred to Germany from the occupied territories and forced to disappear without trace. No information was given as to their whereabouts or fates.3 In the 1960s and 1970s the phenomenon of desaparición forzada spread throughout Latin America, and came to attract the attention of international society thanks largely to passionate endeavours of non-governmental organisations (NGOs) and associations formed by relatives of the victims. It is unfortunate that the practice of enforced disappearance has now become a globalised problem and is not restricted to a specific region. In calling for the adoption by consensus of the ICCPED in 2006, Ms Al-Khalifa of Bahrain, then president of the UN General Assembly, reminded us that: The practice of enforced disappearance is still widespread throughout the world. Unfortunate victims are abducted, and their families are kept in the dark, uninformed of their well-being or fate. Even worse, some of those who disappear are subject to torture and extrajudicial killing.

1 2

3

M. C. Galvis Patiño, in this volume, p. 415. International Convention for the Protection of All Persons from Enforced Disappearance, New  York, signed 20 December 2006, in force 23 December 2010, 2716 UNTS 3. Amnesty International USA, ‘Disappearances’: A Workbook (New York: Amnesty International USA, 1981), p. 2.

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Since 1980, there have been more than 51,000 enforced disappearances in more than 90 countries. More than 500 cases of enforced disappearance were registered [in 2005] alone.4

Not much has changed since then, as indicated by the Working Group on Enforced or Involuntary Disappearances in its annual report covering the period from May 2016 to May 2017: The Working Group is seriously concerned that the number of enforced disappearances continues to be unacceptably high worldwide. A demonstration of this sad reality is the fact that, during the reporting period, the Working Group transmitted 1,094 newly reported cases of disappearance to 36 States. It used the urgent action procedure in 260 of those cases, which allegedly occurred within the three months preceding the receipt of the report by the Working Group.5

33.3 An Evolutionary Process towards an Autonomous Human Right 33.3.1 The Right Not to Be Subjected to Enforced Disappearance Galvis Patiño’s description elucidates the interplay among international (universal and regional) human rights bodies in the process wherein new rights emerged and have been elaborated. Just to add to her analysis, one should notice a fundamental role played by NGOs and associations of relatives of the victims in initiating and facilitating the process that stretched over three decades.6 Worthy of special mention is FEDEFAM (Federación Latinoamericana de Asociaciones de Familiares de Detenidos Desparecidos), which played a key role in advocating and pleading for an international binding instrument against the phenomenon of enforced disappearance. Voices and experiences of the victims/survivors are always a driving force in creating new human rights and this is all the more so with regard to the rights against the egregious crime of enforced disappearance. Without FEDEFAM’s persistent claims contesting the status quo that forced silence on victims, new rights would not have materialised in the international instrument. Galvis Patiño rightly points out that:  ‘the innovation in these rights lies not only in their explicit recognition in the ICCPED – a recognition that had not been expressed in those terms in any other international instrument – but also in the way in which the CED [Committee on 4

5

6

UN General Assembly, Verbatim Record of Meeting, 61st Session: 82nd Plenary Meeting, Wednesday, 20 December 2006, UN Doc. A/61/PV.82. HRC, Report of the Working Group on Enforced or Involuntary Disappearances, 31 July 2017, UN Doc. A/HRC/36/ 39, para. 112. Incidentally, as part of the international community, my country Japan has not been free from the grave effects of this global phenomenon. Thus, Familiares de Desaparecidos de la Colectividad Japonesa reveals that at least seventeen Japanese immigrants are identified as los desparecidos japoneses who were forcibly disappeared under the military junta in Argentina mostly during the period between 1976 and 1978. Two of them are reported to still have had Japanese nationality when they disappeared. See C. Ishida, ‘La colectividad and the Japanese Disappeared people under the Regime of Military Junta in Argentina’ (in Japanese) (2015) Contact zone 7, available at http://hdl .handle.net/2433/209809. Furthermore, Japan was a venue for a trans-border enforced disappearance. ‘During the 1970s and 1980s, a string of incidents occurred involving the abduction of Japanese citizens by DPRK [Democratic Peoples’ Republic of Korea]. The Government of Japan has so far identified 17 Japanese citizens as victims of these trans-border enforced disappearances. In September 2002, DPRK admitted that it had abducted Japanese citizens and apologized. In October of that year, five abductees returned to Japan. As for the rest of the Japanese abductees, Pyongyang has yet to provide any acceptable explanations’:  Ministry of Foreign Affairs of Japan, ‘Abductions of Japanese Citizens by North Korea’, 6 November 2017, available at www.mofa.go.jp/region/asia-paci/n_korea/ abduction/index.html. See generally W. Taylor, ‘Background to the Elaboration of the Draft International Convention for the Protection of All Persons from Enforced Disappearance’ (2001) 62–63 International Commission of Jurists Review 63; R. Brody and F. Gonzalez, ‘Nunca Mas: An Analysis of International Instruments on “Disappearances” ’ (1997) 19 Human Rights Quarterly 369.

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Enforced Disappearance] specifies both the content of these rights and the relevant obligations and duties incumbent upon the States’.7 Indeed, the ICCPED is the very first international human rights instrument to articulate the non-derogable right not to be forcibly disappeared in absolute terms.8 Even the 1994 Inter-American Convention on Forced Disappearance of Persons9 has settled for a preambular formula stating that the enforced disappearance violates numerous human rights enshrined in the American Convention on Human Rights, the American Declaration of Rights and Duties and the Universal Declaration of Human Rights. As Scovazzi and Citroni recall, ‘before the 2007 Convention, a universally agreed and binding definition of the offence was still lacking’.10 The international case law on enforced disappearance was even contradictory, thus giving rise to a gap in protection. In identifying the offence of enforced disappearance, the epoch-making judgment of the Inter-American Court of Human Rights (IACtHR) in 1988 simply enumerated several human rights violated by enforced disappearance.11 The Human Rights Committee did not share the IACtHR’s enumeration of affected rights when it considered individual communications on enforced disappearance. Neither did the European Court of Human Rights.12 A report of the Council of Europe accurately describes the contradictory case law as follows: Whilst the UN Human Rights Committee has taken the view that every prolonged incommunicado detention constitutes inhuman treatment, the European Court of Human Rights and the Interamerican Court of Human Rights have found a violation of Article 3 ECHR only in cases where there was evidence of torture or ill-treatment … The approach followed by the European Court of Human Rights understands enforced disappearance only as an aggravated form of arbitrary detention, which does not reflect the extremely serious nature of this human rights violation.13

The report of the Council of Europe stressed the need to establish a new, independent and nonderogable human right not to be subjected to enforced disappearance in a future international instrument, a call reiterating a recommendation put forth by an independent expert in his comprehensive submission to the now defunct UN Commission on Human Rights.14 As delineated by Galvis Patiño, eventually the autonomous and non-derogable right has come to be enunciated in Article 1 of the ICCPED. It provides that no one shall be subjected to enforced disappearance and that no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other emergency, may be invoked as justification for enforced disappearance. The right is thus ‘enshrined in similar terms to those found in the Universal Declaration of Human Rights and the International Covenant on 7 8

9

10

11 12 13

14

Galvis Patiño, in this volume, p. 422. S. McCrory, ‘The International Convention for the Protection of all Persons from Enforced Disappearance’ (2007) 7 Human Rights Law Review 549. Inter-American Convention on Forced Disappearances of Persons, Belem do Para, 9 June 1994, in force 28 March 1996, OAS Treaty A-60. T. Scovazzi and G. Citroni, The Struggle against Enforced Disappearance and the 2007 United Nations Convention (Leiden: Martinus Nijhoff Publishers, 2007), p. 267. IACtHR, Velásquez Rodríguez v. Honduras (Merits), 29 July 1988, Ser. C, No. 4, paras. 150–157. See HRC, Report Submitted by Mr Manfred Nowak, 8 January 2002, UN Doc. E/CN.4/2002/71, para. 75. Council of Europe, Parliamentary Assembly, Enforced Disappearances: Report to the Committee on Legal Affairs and Human Rights, 19 September 2005, CoE Doc. 10679, para. 48 (notes omitted). ‘This contradicting case law clearly reveals a gap in the protection against enforced disappearance … It seems, therefore, necessary either to establish a new, independent and non-derogable human right not to be subjected to enforced disappearance or to specify in a legally binding manner that every act of enforced disappearance, in addition to arbitrary deprivation of liberty, constitutes an act of inhuman treatment … and a violation of certain other human rights’ (HRC, Report submitted by Mr Manfred Nowak, para. 76).

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Civil and Political Rights to slavery, torture and arbitrary arrest and detention, along with other rights the entitlement to which is expressed in the negative’.15 The ICCPED was drafted by an Intersessional Open-ended Working Group whose chairperson led the discussion by presenting a draft Convention for deliberation.16 Throughout the drafting process there was no objection raised to the proposed enunciation of the right not to be subjected to enforced disappearance.17 The IPPCED was adopted by consensus in the UN General Assembly. No reservation was expressed by any state before or after the vote as to the enunciation of the right per se. The IPPCED came into effect in December 2010, and the right not to be subjected to enforced disappearance is now evidently ingrained in the lexicon of positive International Human Rights Law18 as an autonomous human right.19 33.3.2 The Constitutive Elements The ICCPED specifies the contents of the new right in Article 2.  For the purposes of the ICCPED, the elements that constitute enforced disappearance are: (1) deprivation of liberty; (2)  direct or indirect involvement of the state; (3)  refusal to acknowledge the detention; and (4) placement of the enforced person outside the protection of the law. These elements essentially reflect the definition of enforced disappearance in the previous normative instruments, i.e. the 1992 UN Declaration on the Protection of All Persons from Enforced Disappearance (preamble) and the 1994 Inter-American Convention on Forced Disappearance of Persons (Art. II). Unlike the Statute of the International Criminal Court, however, the ICCPED definition sensibly refrains from including the subjective element of intentionality and the time threshold that requires a prolonged period of time.20 15

16

17

18

19

20

McCrory, ‘The International Convention for the Protection of All Persons from Enforced Disappearance’, 549. The preamble of the ICCPED suggests that the states parties have agreed on the formula of Art. 1 by ‘[c]onsidering the right of any person not to be subjected to enforced disappearance’. The drafting process in the UN was initiated in the Sub-Commission for the Promotion and Protection of Human Rights, where a draft International Convention on the Protection of All Persons from Enforced Disappearance was adopted in 1998. The draft Convention was brought to the Commission on Human Rights, which decided to establish the Intersessional Working Group in 2001. The autonomous right not to be subjected to enforced disappearance was not stipulated in the 1998 draft Convention. See F. Andreu-Guzman, ‘The Draft International Convention on the Protection of All Persons from Forced Disappearance’ (2001) 62–63 International Commission of Jurists Review 73. The text of the draft Convention is reproduced in (2001) 62–63 International Commission of Jurists Review 107. The Chairperson’s draft originally provided that no one ‘may’ be subjected to enforced disappearance. He later suggested the replacement of ‘may’ with ‘shall’, which ‘met with no objection’. HRC, Report of the Intersessional Open-ended Working Group, 10 March 2005, UN Doc. E/CN.4/2005/66, para. 27. As of 5 May 2018, fifty-eight states had ratified or acceded to the CED. In addition, forty-nine states had signed (but not yet ratified) it, indicating that according to Art. 18(a) of the Vienna Convention on the Law of Treaties they are obliged to refrain from acts which would defeat the object and purpose of the CED. Thus they are already legally bound to not deny the right not to be subjected to enforced disappearance, the core concept of the CED. On the status of parties to the CED, see https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV16&chapter=4&clang=_en. The Inter-American Court of Human Rights opined that ‘the prohibition of the forced disappearance of persons and the corresponding obligation to investigate and punish those responsible has attained the status of jus cogens’: IACtHR, Goiburú and Others v. Paraguay (Merits, Reparations and Costs), 22 September 2006, Ser. C, No. 153, para. 84. This holding obviously reinforces the normativity of the newly formulated right not to be subjected to enforced disappearance. ‘[I]nternational criminal law seems to define enforced disappearances in a very narrow manner which can only be applied in truly exceptional circumstances’: HRC, Report submitted by Mr Manfred Nowak, para. 74). During the drafting process, some states, including the United States, expressed serious concern over the absence of intentionality: see HRC, Report of the Intersessional Open-ended Working Group, 2 February 2006, UN Doc. E/CN.4/2006/ 57, paras. 94–96). However, not a single state opposed the adoption of the final version of the ICCPED.

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It is noteworthy that the monitoring body of the ICCPED, the Committee on Enforced Disappearances, stresses irrelevance of time as a factor for enforced disappearance in its first Views under the individual communication procedure. The Committee recalls that: ‘[I]n order to constitute an enforced disappearance, the deprivation of liberty must be followed by a refusal to acknowledge such deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law, regardless of the duration of the said deprivation of liberty or concealment’.21 In that particular case, the deprivation of liberty that extended over just seven days was sufficient for the Committee to determine the violation of the right not to be subjected to enforced disappearance as defined in the ICCPED. The Committee’s work also helps to clarify a ‘constructive ambiguity’ deriving from the drafting process in regard to the above element (4).22 State delegations were unable to reach agreement as to whether the element of ‘placement outside the protection of the law’ constitutes a fourth autonomous element or an inherent consequence of enforced disappearance.23 In addressing this issue in its first Views, the Committee states that: [T]he placement of a person outside the protection of the law is the consequence of the concealment of the arrested or detained person’s whereabouts. In such instances, detained persons are placed outside the protection of the law when, as a result of the disappearance, they are prevented from availing themselves of the remedies which the laws of the State Party place at their disposal in order to ensure that a court can reach a decision as to the lawfulness of their deprivation of liberty, as occurred in this case.24

The Committee’s articulation of the constitutive elements expands the scope of protection for the victims, and is in line with the views of the UN Working Group on Enforced or Involuntary Disappearances25 and of the Human Rights Committee.26 As mentioned above, the core elements of the concept of enforced disappearance in the ICCPED are essentially reflective of the previous international instruments. Novelty in the ICCPED lies in the normative leap of explicitly conceptualising these elements as an autonomous and absolute human right in a binding universal instrument. Thus the establishment of the right not to be subjected to enforced disappearance represents ‘the fulfillment of an evolutionary process resulting, with some contradictions, from non-binding legal instruments, the case law of a number of 21

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Committee on Enforced Disappearances, Estela Deolinda Yrusta and Alejandra del Valle Yrusta v.  Argentina, Communication No. 1/2013, 12 April 2016, UN Doc. CED/C/10/D/1/2013, para. 10.3 (emphasis added). HRC, Report of the Intersessional Open-ended Working Group, 10 March 2005, UN Doc. E/CN.4/2005/66, para. 23. At the time of adoption of the ICCPED in the Third Committee of the UN General Assembly, Japan joined the United Kingdom in insisting on the former view:  see UNGA, Third Committee Approves Draft Resolution, 13 November 2006, UN Doc. GA/SHC/3872. The Japanese government made public its Japanese translation of the ICCPED wherein enforced disappearance is explicitly described as consisting of four distinctive elements. In the translated version, the element (4) is posited in parallel with the three preceding elements with the conjunctive ‘and’. For the Japanese translation of the CED see www.mofa.go.jp/mofaj/gaiko/treaty/pdfs/shomei_24.pdf. Committee on Enforced Disappearances, Estela Deolinda Yrusta et.al. v. Argentina, para. 10.4 (notes omitted). The Working Group’s General Comment on the definition of enforced disappearance makes it clear that ‘any act of enforced disappearance has the consequence of placing the persons subjected thereto outside the protection of the law’. The Working Group therefore admits cases without requiring ‘the intention of the perpetrator to place the victim outside the protection of the law’. See para. 5 of the Working Group’s General Comment on the definition of enforced disappearance, available at www.ohchr.org/Documents/Issues/Disappearances/disappearance_gc.pdf. The Human Rights Committee is of the view that ‘in cases of enforced disappearance, the act of deprivation of liberty, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate of the disappeared person, denies the person the protection of the law and places his or her life at serious and constant risk, for which the State is accountable’. See e.g. HRC, Al Jilani Mohamed M’hamed Al Daquel v. Libya, Communication No. 1882/ 2009, 26 August 2014, UN Doc. CCPR/C/111/D/1882/2009, para. 6.4; HRC, Rosa Maria Cerna et. al. v. Colombia, Communication 2134/2012, 22 September 2015, UN Doc. CCPR/C/114/D/2134/2012, para. 7.4.

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international human rights bodies and the only specific, although regional, precedent of the 1994 Interamerican Convention’.27 33.3.3 Victims/Rights Holders Galvis Patiño identifies a number of rights stipulated in the ICCPED as novel while highlighting the most innovative among them as the right not to be forcibly disappeared, the right not to be secretly detained and the right to be searched for.28 It is noted that relevant to the novelty of these rights is the broad notion of ‘victim’ adopted in the ICCPED, which includes in its definition ‘any individual who has suffered harm as the direct result of an enforced disappearance’ (Art. 24(1)). Thus, in addition to the disappeared person, ‘not only the relatives of the material victim, but also all who have suffered harm in intervening to assist victims and their relatives, such as human rights defenders and lawyers’,29 may be categorised as autonomous rights-holders under the ICCPED. The extension of the concept of victim obviously follows the evolutionary jurisprudence on enforced disappearances of international human rights bodies including, inter alia, the Inter-American Court of Human Rights.30 In its first Views, the Committee on Enforced Disappearances dealt with a case of secret transfer of an individual within a state. Fully taking into consideration the broad concept of victim in the ICCPED, the Committee determined the violation not only of the right of the material victim not to be subjected to enforced disappearance, but also of the rights of his sisters to information and truth, and to the search for, location and release of the disappeared brother. This is a welcoming jurisprudential development, particularly for those who are in anguish, fear and uncertainty as a direct result of an enforced disappearance.

33.4 New Human Rights in a New Context As exemplified by Galvis Patiño, the process of rights formulation is in constant evolution, responding to new patterns and practices of enforced disappearance. One should note that the migratory context presents a new challenge wherein the newly established rights are increasingly to be highlighted. A recent UN report warns that: The phenomenon of enforced disappearance of migrants is a modern-day reality and should not be ignored or underestimated. The increasingly precarious movements of migrants, including through long and perilous journeys associated, among other things, with often increasingly rigid migratory policies of States, have created a situation which exposes them to heightened risks of becoming victims of human rights violations, including enforced disappearances.31

The report concludes that:  ‘[T]here is a direct link between migration and enforced disappearances, either because individuals leave their country as a consequence of a threat or risk of being subjected to enforced disappearances there, or because they disappear during their 27 28 29 30

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Scovazzi and Citroni, The Struggle against Enforced Disappearance, p. 265. Galvis Patiño, in this volume, p. 421. Scovazzi and Citroni, The Struggle against Enforced Disappearance, p. 346. The concept of victim in the ICCPED is also reflective of Principle 8 of the Resolution 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted and proclaimed by UN General Assembly, 16 December 2005, UN Doc. A/Res/60/147. HRC, Report of the Working Group on Enforced or Involuntary Disappearances on Enforced Disappearances in the Context of Migration, 28 July 2017, UN Doc. A/HRC/36/39/Add.2, para. 80.

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journey or in the country of destination’.32 As outlined in the report, migrants deprived of liberty must be held in an officially recognised place of detention and their detention must be formally registered. Where disappearance of migrants has occurred, states are obliged to search for them. In light of the ICCPED, these preventive and remedial measures directly correspond to the right not to be subject to enforced disappearance and other related rights, including not to be secretly detained.33 Unlike the first individual communication case reviewed by the Committee on Enforced Disappearances, enforced disappearances in the context of migration engage multiple actors across national borders, which raises a fundamental question as to how ensuing state obligations should be formulated for the effective protection/restoration of the victims’ human rights. The above-mentioned UN report delineates ‘unofficial arrangements’ between governments that led to disappearances of migrants during or after expulsion or deportation processes. It also refers to arbitrary or collective pushbacks of migrants that result in disappearances.34 In these cases, no single state is alone responsible for such trans-border enforced disappearance. Rather, it may be argued that one single trans-border wrongful act that violates the right not to be subjected to enforced disappearance is committed jointly by all states acting together. In the words of Lucas, echoing Nollkaemper, their ‘actions are concerted to form one coherent whole, and the action is described in terms of that whole, not of its individual constituents’.35 Such being the case, the eventual violation of the right cannot be divisible among responsible states. Put differently, in this context the scope of the right not to be subjected to enforced disappearance transcends the national border of a particular state, engaging the corresponding obligations of a collectivity of states concerned. The trans-border conceptualisation of the right not to be forcibly disappeared with the corresponding obligations to be performed by a collectivity of states will reinforce the protection of migrants who are in a particularly difficult position for determining the exact nature of each state’s involvement. Nollkaemper suggests a relational account of responsibility that provides a justification for shared responsibility. Shared responsibility: is not simply the aggregation of two or more individual responsibilities. The responsibility of separate actors is connected by the interdependence of conduct and by their respective links to the same harmful outcome … If multiple actors interact and thereby achieve results that they could not have achieved alone, assigning responsibility to all the actors who contributed to the harmful outcome, rather than to only one of them, can better serve the aims of the law of responsibility.36

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HRC, Report of the Working Group on Enforced or Involuntary Disappearances, UN Doc. A/HRC/36/39/Add.2, para. 81. The extensive use of detention as a means of border control in a transit or destination state has sometimes given rise to enforced disappearance. The UN report refers to ‘the fact that migrants are often detained in unofficial detention centres with little or no registration systems, the very limited access of migrants to the justice system and the lack of an independent monitoring mechanisms for such detentions’: HRC, Report of the Working Group on Enforced or Involuntary Disappearances, UN Doc. A/HRC/36/39/Add.2, para. 23. Highlighted in this fact is the need to protect the right not to be secretly detained in the context of migration. HRC, Report of the Working Group on Enforced or Involuntary Disappearances, UN Doc. A/HRC/36/39/Add.2, paras. 25–33. J. R. Lucas, Responsibility (Oxford: Clarendon Press, 1995), p. 75. See also A. Nollkaemper, ‘Shared Responsibility for Human Rights Violations’, in T. Gammeltoft-Hansen and J. Vedsted-Hansen (eds.), Human Rights and the Dark Side of Globalization (London and New York: Routledge, 2017), p. 31. Nollkaemper, ‘Shared Responsibility’, pp. 34 and 43. In this particular context, the principle of individual responsibility that requires a state to be responsible for its own wrongful conduct, and not for the concerted act as a whole,

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To illustrate the usefulness of the concept of shared responsibility, he takes up the extraordinary rendition practice, a most typical contemporary form of trans-border enforced disappearance. His argument is quite suggestive of how multiple states concerned should assume international responsibility arising from a breach of the obligation not to subject anyone to enforced disappearance in the trans-border migratory context. The right not to be subjected to enforced disappearance will evolve in a newly emerging transborder context which necessarily impacts the ensuing obligation and responsibility assumed by states concerned. Through its endeavours, the monitoring body of the ICCPED is expected to further elaborate on the evolving contours of this newly formulated right.

may result in the diffusion of responsibility and undermine the objective of the protection of the right concerned. Noellkaemper notes, however, that shared responsibility poses no small conceptual challenge to the idea of independent responsibility, which is the prevailing paradigm of International Law: ibid., p. 29.

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34 The Emergent Human Right to Consular Notification, Access and Assistance David P. Stewart

34.1 Introduction The field of human rights is not static. It evolves in response to newly identified needs as well as clearer perceptions of recognised needs. Much of the discussion in this volume explores the fresh articulation of new substantive rights, the identification of new ‘rights-bearers’, and the creation of new mechanisms for rights protection.1 This chapter describes a somewhat different process, namely, the gradual recognition of an individual or human right derived from long-acknowledged principles of public international law. Specifically, it documents how the international community has increasingly come to accept the concepts of diplomatic protection and consular assistance, which in their traditional formulations created rights and obligations only for and between states, as providing rights owing to and claimable by individuals. It is therefore a study in the evolution of international legal practices and principles, driven by an appreciation of basic notions of fair treatment and minimum guarantees of due process. It provides an example of a right that has emerged relatively recently (or, perhaps more accurately, is still emerging) but that has been elaborated on the basis of recognised principles of international law and state practice. The essence of this right is simple: a national of one state who has been arrested or detained in another state has a right to the protection and assistance of the authorities of his or her state of nationality or another state acting on behalf of that state. The need for such protection and assistance is straightforward. Foreign nationals are typically at a significant disadvantage when they become involved in the criminal justice system of another state. They face greater challenges in defending themselves against criminal charges because they are likely to be unfamiliar with the local language, laws, policies and procedures. They may not know what rights might be available, and may not have access to counsel or be able to locate evidence bearing on the accusations against them. They certainly run a real risk of discrimination, whether intentional or not, and even mistreatment.2 Allowing the relevant authorities to contact them and provide assistance serves as a protection against such risks – by ‘levelling the playing field’ and helping to ensure fair treatment. Rather than unduly privileging

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Generally, see A. Brysk and M. Stohl (eds.), Expanding Human Rights:  21st Century Norms and Governance (Cheltenham: Edward Elgar Publishing, 2017). J. Quigley, W. Aceves and S. Shank, The Law of Consular Access:  A Documentary Guide (London:  Routledge, 2010), p. 1.

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foreigners, such access and assistance helps to avoid or resolve a variety of systemic difficulties that may arise for the police, the prosecuting authorities, defence counsel and the courts. In their traditional (public international law) formulation, the rights of notification, access and assistance were considered to belong to an individual’s state of nationality, to be asserted or exercised at that state’s discretion. In recent years, however, they have increasingly been understood to encompass an individual right, to be asserted directly by the person in custody. To date, however, the international community has not conclusively articulated this right as a human right, for example by resolution of the UN Human Rights Council or the UN General Assembly, much less by definitive codification in a new international instrument. Yet one can point to various sources  – a series of international and national judicial decisions, additional treaty provisions and other formal statements, and a growing body of scholarly literature – as evidence that entitlement to consular notification, access and assistance is increasingly recognised as part of the long-accepted human right to due process and fair treatment in the judicial process – an aspect of the right to a fair trial.3 How this right has emerged, how it continues to gain recognition as a human right and where it still requires definition is what merits study and discussion. For present purposes, the substance of the right is taken to mean that when an individual has been detained or arrested by the authorities of a foreign state, he or she is entitled to require those authorities to provide notice to the appropriate (typically consular) officials of his or her state of nationality (or others acting on their behalf) and to grant them access to the individual as well as the opportunity to provide appropriate assistance  – including in connection with retaining counsel for his or her defence. It is a positive right, one that requires action by the detaining government in the exercise of its public authority. For ease of description, the right will hereafter be denominated ‘consular assistance’. The following sections describe the origins of this new right, recount the main judicial and other texts that support its emergence as an individual as well as a human right, indicate some areas of resistance, and finally suggest some steps that might be taken to solidify the right.

34.2 Origins The doctrinal origins of the right lie in the theory of state responsibility and diplomatic protection, in particular the public international law principle that an injury to a national of a state is in effect an injury to that state. Long ago, the Permanent Court of International Justice recognised the right of a state to take up the case of its nationals by resorting to diplomatic action or international judicial proceedings on their behalf.4 Traditionally, asserting that right (including through espousal of a claim of its national) was one of the primary methods by which denials of justice and similar abuses committed by other states against foreigners in their territories could be resolved. ‘Diplomatic protection’ was thus viewed as the right of a state to take lawful and peaceful steps to resolve disputes involving its nationals, including direct negotiation, arbitration or presentation of a claim to an international court with jurisdiction. In the International Law Commission (ILC)’s draft articles on diplomatic protection, the term is defined as involving ‘the invocation 3

4

See e.g. C. Cerna, ‘The Right to Consular Notification as a Human Right’ (2008) 31 Suffolk Transnational Law Review 419; J. Quigley, ‘Vienna Convention on Consular Relations: In Retrospect and into the Future’ (2013) 38 Southern Illinois University Law Journal 1. PCIJ, Mavrommatis Palestine Concessions (Greece v. United Kingdom), 30 August 1924, Ser. A, No. 2; PCIJ, PanevezysSaldutiskis Railway (Estonia v. Lithuania), 28 February 1937, Ser. A/B, No. 76.

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by a State, through diplomatic action or other peaceful means, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility’.5 So conceived, the right belongs to the state of the individual’s nationality, subject to the requirement of ‘exhaustion of local remedies’.6 With the increasing ability of foreign nationals to pursue claims against foreign governments directly (through domestic litigation, for example, or before human rights bodies), the need for state-to-state resolution has diminished and the formal espousal of individual claims has become less common. Yet the right to invoke diplomatic protection and to pursue a claim of state responsibility at the state-to-state level still belongs to the state, and the decision to assert that right (as well as to accept a particular resolution of the issue) remains discretionary. Similarly, the term ‘consular assistance’ refers (in its traditional sense) to the right of a state, acting through its accredited consular officers, to provide various kinds of assistance to its nationals who have been detained or arrested by the authorities in another state. The distinction between diplomatic protection and consular assistance is not always clear,7 but in principle the latter entitles the state of nationality (sometimes called the ‘sending state’) to have access to and communicate with its nationals for the purpose of carrying out its own functions and responsibilities.8 This right was codified in Article 36 (entitled ‘Communication and contact with nationals of the sending State’) of the 1961 Vienna Convention on Consular Relations.9 That article describes the right in the following terms: 1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State: (a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph; (c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange

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UNGA, Report of the International Law Commission (ILC), 2006, UN Doc. A/61/10 Supplement No. 10, Chapter IV: Draft Articles on Diplomatic Protection, Art. 1. Ibid., Arts. 3(1), 4, 14 and 15. E. Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4th ed. (Oxford: Oxford University Press, 2016), p.  32; A. Künzli, ‘Exercising Diplomatic Protection:  The Fine Line Between Litigation, Demarches and Consular Assistance’ (2006) 66 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 321 at 331–332. See ILC, ‘Draft Articles on Consular Relations with Commentaries’ (1961) II Yearbook of the International Law Commission 89 at 112. Vienna Convention on Consular Relations, Vienna, 24 April 1963, in force 19 March 1967, 596 UNTS 261, now in force for 179 states parties (another four have signed but not yet ratified/acceded).

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for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. 2. The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended. Textually, Article 36 provides the sending state’s consular officers with the right to communicate with, have access to and visit, converse and correspond with their nationals in detention, and to provide assistance to those nationals, subject to local laws and regulations. To enable this right, and more generally to ‘enable full effect to be given to the purposes for which the rights accorded … are intended’, the host government must inform the sending state’s consular post when an arrested or detained national of that state so requests. By its terms, then, Article 36 describes rights and obligations between states parties to the Convention, not rights afforded directly to (or capable of being directly invoked by) the individuals in question.10 How, then, has the notion of an individual right of consular assistance emerged? The answer is slowly, as an iterative process of claim and counterclaim, primarily through judicial interpretation and in response to governmental claims but initially driven by non-state actors.

34.3 Elaboration by International Courts It appears that, at least in the United States, the first serious efforts to articulate the right occurred in the early 1990s in the context of capital punishment. More specifically, counsel for three foreigners separately convicted of capital crimes in Texas contended (belatedly and unsuccessfully) that their convictions and sentences should have been overturned because the relevant authorities had failed to provide consular notification and access, thereby preventing the individuals from receiving fair trials. These cases were described in what apparently was the first academic discussion of the subject, which focused on the due process violations resulting from the failure to provide notification and access.11 The earliest – and most transformative – normative step at the international level was taken by the Inter-American Court of Human Rights (IACtHR) in 1999, in its Advisory Opinion on The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law.12 Like so many of the court cases on this topic, the issue also arose in the specific context of capital punishment in the United States. 10

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Art. 36(1)(b) does, of course, obligate the authorities of the detaining state to inform the person concerned of ‘his rights’. There is little evidence, however, that at the time it was negotiated this provision (or the treaty as a whole) was understood to provide rights that an individual might assert directly on his or her own behalf. On the contrary, the traditional view prevailed that the treaty created rights and duties for states parties. As discussed below, a significant part of the story has been the reinterpretation of Art. 36 in light of the emergence of human rights norms and the increasing recognition that individuals do have rights under international law. See S. Shanli and J. Quigley, ‘Foreigners on Texas’ Death Row: The Right of Access to a Consul’ (1995) 28 St. Mary’s Law Journal 719. The individuals were from the Dominican Republic, Canada and Mexico. IACtHR, The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99 of 1 October 1999, Ser. A, No. 16.

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The request for an advisory opinion came from the government of Mexico, which claimed that a number of its nationals had been sentenced to death in the United States without being informed of their Article 36 right to communicate with Mexican consular authorities. Invoking the American Convention on Human Rights,13 Mexico sought the Court’s opinion inter alia on whether Article 36 should be interpreted as containing provisions concerning the protection of human rights in the American States. Contesting the Court’s jurisdiction, the United States argued that the Vienna Convention on Consular Relations was ‘neither a human rights treaty nor a treaty “concerning” the protection of human rights’.14 Because ‘[t]he right to be advised of consular assistance exists only when the sending State has the right to conduct consular functions within the host State’, it argued, ‘the logical inference is that the Vienna Convention does not construe it to be a human right’.15 The Court disagreed, however, concluding that Article 36 affords detained foreign nationals with ‘individual rights’ that are the counterpart to the host state’s correlative duties, so that the consular communication to which Article 36 is addressed ‘does indeed concern the protection of the rights of the national of the sending State and may be of benefit to him’.16 It then addressed the substantive importance of consular notification and assistance in the criminal justice process, particularly when the crime is punishable by the death penalty. The ‘due process of law’, it said, requires that ‘a defendant must be able to exercise his rights and defend his interests effectively and in full procedural equality with other defendants’ and that ‘the judicial process must recognize and correct any real disadvantages that those brought before the bar might have, thus observing the principle of equality before the law and the courts and the corollary principle prohibiting discrimination’.17 Given the vulnerable situation of foreign nationals facing criminal proceedings, the Court concluded: ‘the individual right [of consular notification and access] must be recognized and counted among the minimum guarantees essential to providing foreign nationals the opportunity to adequately prepare their defense and receive a fair trial.’18 Non-observance of a detained foreign national’s rights under Article 36(1)(b), it said, is ‘prejudicial to the guarantees of the due process of law’ and, in such situations, ‘imposition of the death penalty is a violation of the right not to be “arbitrarily” deprived of one’s life’.19 Article 36 therefore confers rights upon detained foreign nationals, among them the right to information on consular assistance; it ‘concerns the protection of the rights of a national of the sending State’ and ‘is part of the body of international human rights law’.20 Judge Antônio A. Cançado Trindade, then-president of the Court, appended a concurring opinion emphasising more broadly that in light of the ‘dynamic or evolutive interpretation of the treaties of protection of the rights of the human being’, it is no longer possible to ‘pretend to dissociate the above-mentioned right to information on consular assistance from the corpus juris of human rights … The evolution of the international norms of protection has been, in its turn, fostered by new and constant valuations which emerge and flourish from the basis of human society, and which are naturally reflected in the process of the evolutive interpretation 13

14 15 16 17 18 19 20

American Convention on Human Rights (Pact of San José), San José, 22 November 1969, in effect 18 July 1978, 1144 UNTS 123. IACtHR, Advisory Opinion OC-16/99, para. 26. Ibid., para. 27. Ibid., paras. 73, 80, 84, 87. Ibid., paras. 117, 119. Ibid., para. 122. Ibid., para. 137. Ibid., paras. 141(1) and (2) (original emphasis).

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of human rights treaties’.21 As part of ‘the process of humanization of international law, which today encompasses also this aspect of consular relations … [this] individual right, inserted into the conceptual universe of human rights, is nowadays supported by conventional international law as well as by customary international law’.22 The Court thus recognised that (1)  Article 36 provides an individual right on the part of detained foreign nationals and (2) deprivation of that right, at least in criminal proceedings with the possible imposition of capital punishment, necessarily implicates the individual’s fundamental human rights of due process and fair trial. Whether those conclusions represented a groundbreaking interpretation of Article 36, or simply affirmed rights that had always existed in the American Convention on Human Rights, can of course be debated.23 At the time, the Court’s judgment was hailed as a novel reinterpretation. Often overlooked, however, is the fact that, two decades before, when the International Court of Justice (ICJ) was first asked to consider Article 36,24 the United States had itself argued that it ‘establishes rights not only for the consular officer but, perhaps even more importantly, for the nationals of the sending State who are assured access to consular officers and through them to others’.25 Notably, the ICJ did not address the point in its judgment in that case and it was slow to accept the ‘individual rights’ argument in subsequent cases. It seems clear that, at least in its initial stages, advocacy for Article 36 rights initially served to some extent as a proxy for opposition to the death penalty, both at the international level and in US courts. In 1998, for example, Paraguay brought an ICJ proceeding against the United States contending that the Commonwealth of Virginia had detained, tried and convicted a Paraguayan citizen (Angel Francisco Breard) of murder and attempted rape and sentenced him to death, all without advising him of his right to consular assistance or notifying Paraguayan consular officers. As a result, Paraguay argued, his conviction should be overturned (as a form of restitutio in integrum).26 In its order of provisional measures, however, the Court did not address the individual or human rights issues, but simply called on the United States to ‘take all measures at its disposal’ to prevent Breard’s execution pending its final decision.27 Later the same year the Federal Republic of Germany brought a similar request to the Court. Two of its nationals, Karl and Walter LaGrand, had been convicted of murder and sentenced to death in Arizona; one execution had been carried out and the other was imminent. Germany contended that because neither individual had been advised of his rights to consular notification and assistance, it had been precluded from protecting their interests during their ensuing trials and appeals. As a result, it argued, their sentences were void and the United States was obligated to halt the pending execution and provide reparation for the one that had been carried out. In addition to invoking its own right of diplomatic protection, Germany contended that the right

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23 24

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IACtHR, Advisory Opinion OC-16/99, Concurring Opinion of Judge A. A. Cançado Trindade, para. 15. Ibid., at para. 35. See also A. A. Cançado Trindade, ‘The Humanization of Consular Law: The Impact of Advisory Opinion No. 16 (1999) of the Inter-American Court of Human Rights on International Case-Law and Practice’ (2007) 6 Chinese Journal on International Law 1 (original emphasis). See Cerna, ‘The Right to Consular Notification’, 436–439. ICJ, United States Diplomatic and Consular Staff in Iran (USA v.  Iran), judgment, 24 May 1980, ICJ Reports 1980, p. 3. See ICJ, United States Diplomatic and Consular Staff in Iran, Memorial of the Government of the United States of America, 12 January 1980, available at www.icj-cij.org/en/case/64, at p. 174 (emphasis added). ICJ, Case concerning the Vienna Convention on Consular Relations (Paraguay v.  USA), Application instituting proceedings: Application of the Republic of Paraguay, 3 April 1998. A parallel challenge was considered but rejected by the US Supreme Court. See Breard v. Greene, 523 US 371 (1998).

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to be informed of the rights under Article 36(1)(b) is an individual right of every national of one state party who enters the territory of another state party. As it had done before the IACtHR, the United States countered that the rights of consular notification and access under the Vienna Convention are rights of states and not of individuals, even though these rights may benefit individuals by permitting states to offer them consular assistance.28 On this point, the Court sided with Germany. Article 36(1), it said, spells out obligations of the receiving state towards both the detained person and the sending state, and thus ‘creates individual rights, which, by virtue of Article 1 of the Optional Protocol, may be invoked in this Court by the national State of the detained person’.29 Germany also argued that the right of consular notification had ‘assumed the character of a human right’ and, in consequence, ‘the character of the right under Article 36 as a human right renders the effectiveness of this provision even more imperative’.30 On this point the Court demurred, reasoning that because the United States had been found to have violated the rights accorded by Article 36(1) to the LaGrand brothers, it was unnecessary to consider the additional argument developed by Germany.31 The ICJ’s 2004 decision in the Avena Case was to the same effect.32 There, Mexico alleged that fifty-four Mexican nationals had been tried, convicted and sentenced to death in US courts without being provided their rights of consular notification and access, thus preventing Mexico from exercising its rights under Article 36. Mexico explicitly framed its claim as a violation of a ‘due process’ right, contending that ‘the right to consular notification under the Vienna Convention is a human right’.33 In its judgment, the ICJ acknowledged that Article 36 confers individual rights (referring to its prior judgment in LaGrand), but said that ‘[w]hether or not the [Vienna Convention] rights are human rights is not a matter that this Court need decide’, observing that ‘neither the text nor the object and purposes of the Convention, nor any indication in the travaux préparatoires, support the conclusion that Mexico draws from its contention in this regard’.34 Ad hoc Judge Sepúlveda’s Separate Opinion emphasised that Article 36 creates individual rights:  ‘Consular protection may be an important element for due process of law, especially in capital cases. Depending on the circumstances of each case, individual rights emanating from Article 36 can be equated with constitutional rights when the question to decide is closely related to the fair administration of justice.’35 In these proceedings, the contentions of the various governments, while framed in terms of due process and human rights, were undoubtedly motivated (at least in substantial part) by concern for the lives of their nationals and (more broadly) the opposition of their constituents to capital punishment. It is similarly difficult not to hear, in the resulting judgments, some sentiment that the imposition of capital punishment is, by definition, contrary to emergent human rights norms. Casting the argument in terms of treaty obligations also offered a rhetorical advantage

28 29 30 31 32 33

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ICJ, LaGrand Case (Germany v. USA), Judgment, 27 June 2001, ICJ Reports 2001, p. 466, paras. 75 and 76. Ibid., para. 77. The Court did not refer to the IACtHR’s Advisory Opinion OC-16/99. Ibid., para. 78. Ibid. ICJ, Avena and Other Mexican Nationals (Mexico v. USA), judgment, 31 March 2004, ICJ Reports 2004, p. 12. See ICJ, Avena and Other Mexican Nationals, Application initiating proceedings, 9 January 2003, paras. 53 and 281. See also the Memorial of Mexico, 20 June 2003, paras. 331–345 (‘consular notification has been widely recognized as a due process right and, indeed, a human right’). ICJ, Avena and Other Mexican Nationals, paras. 40 and 124. Ibid., Separate opinion of ad hoc Judge Sepúlveda, paras. 12–15 and 56, citing extensively the LaGrand judgment.

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by permitting its advocates to overcome the fact that the domestic courts had reviewed the cases and found no violations of applicable domestic law. The judgments themselves, however, clearly spoke in broader terms, and those concerns have since been repeated in non-capital punishment contexts. Consider, for example, the ICJ’s 2010 judgment in the Diallo case, where the Court held that Zaire (now Democratic Republic of the Congo) was obligated to compensate Guinea for the consequences of its violations of Diallo’s rights, including those under Article 36(1)(b).36 The provision, the Court said, is ‘applicable to any deprivation of liberty of whatever kind, even outside the context of pursuing perpetrators of criminal offences’, and the onus is on the state to inform the arrested individual of his right to ask his consulate to be notified.37 In his separate opinion, Judge Cançado Trindade went further, articulating reasons why the article is properly interpreted to provide ‘individual rights to information on consular assistance’.38

34.4 Other Treaties, Instruments and Bodies Article 36 is certainly not the only international instrument to acknowledge a right of consular assistance, nor has opposition to capital punishment remained at the centre of efforts to promote the right. A number of contemporary instruments emphasise the importance of respecting the right more broadly in circumstances where a general threat of mistreatment or abuse exists. For instance, Article 6(3) of the 1984 UN Torture Convention provides that when a state party detains an individual alleged to have committed one of the offences covered by that treaty, it must assist that individual ‘in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, with the representative of the State where he usually resides’.39 Similarly, the 1990 Migrant Workers Convention provides that migrant workers and members of their families have ‘the right to have recourse to the protection and assistance of the consular or diplomatic authorities of their State of origin or of a State representing the interests of that State whenever the rights recognized in the present Convention are impaired’, including ‘the right to communicate’ with those authorities and to ‘be informed without delay of this right and of rights deriving from relevant treaties, if any, applicable between the States concerned, to correspond and to meet with representatives of the said authorities and to make arrangements with them for his or her legal representation’.40 To much the same effect, the 2006 Enforced Disappearances Convention, which provides that ‘[n]o one shall be held in secret detention’, requires states parties to guarantee that ‘any person deprived of liberty shall be authorized to communicate with and be visited by his or her family, counsel or any other person of his or her choice, subject only to the conditions established by law, or, if he or she is a foreigner, to communicate with his or her consular authorities, in accordance with applicable international law’, and to ‘[g]uarantee access by the 36

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ICJ, Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits Judgment, ICJ Reports 2010, p. 639. Ibid., paras. 91 and 95. ICJ, Ahmadou Sadio Diallo, Separate opinion of Judge Cançado Trindade, paras. 33, 158–188 (emphasis added). UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New  York, 10 December 1984, in force 26 June 1987, UN Doc. A/RES/39/46, 1465 UNTS 85. As of 1 March 2018 it had 163 states parties; another eight had signed but not ratified. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, New  York, 18 December 1990, in force 1 July 2003, UN Doc. A/RES/45/158, 2220 UNTS 3, Arts. 16 and 23. As of 1 March 2018, it has fifty-one states parties and sixteen signatories.

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competent and legally authorized authorities and institutions to the places where persons are deprived of liberty, if necessary with prior authorization from a judicial authority’.41 Various ‘soft law’ instruments contain parallel provisions. The 1985 UN General Assembly’s Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live provides: ‘Any alien shall be free at any time to communicate with the consulate or diplomatic mission of the State of which he or she is a national or, in their absence, with the consulate or diplomatic mission of any other State entrusted with the protection of the interests of the State of which he or she is a national in the State where he or she resides.’42 The 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, also adopted by the UN General Assembly, provides that a ‘foreigner’ who has been detained or imprisoned is entitled, promptly after arrest, to be ‘informed of his right to communicate by appropriate means with a consular post or the diplomatic mission of the State of which he is a national or which is otherwise entitled to receive such communication in accordance with international law or with the representative of the competent international organization, if he is a refugee or is otherwise under the protection of an intergovernmental organization’.43 The UN Convention on the Elimination of All Forms of Racial Discrimination has been interpreted to require states parties to guarantee to all arrested persons enjoyment of all fundamental rights of defence, including ‘the right to consular protection guaranteed by Article 36 of the Vienna Convention on Consular Relations and, in the case of refugees, the right to contact the Office of the United Nations High Commissioner for Refugees’.44 Similarly, the treaty body that oversees implementation of the Migrant Workers Convention has repeatedly emphasised the obligations of states parties to the Convention to protect the rights of migrants to consular access and assistance.45 Other international bodies have recognised the right in the specific context of capital punishment. In 2011, for example, the Inter-American Commission on Human Rights (IAComHR) concluded that a violation of a foreign national’s right to information under Article 36(1)(b) ‘infringes the rights to due process and fair trial’, and in capital cases means that the victim has been ‘arbitrarily’ deprived of his or her life.46 The UN General Assembly, in calling for a moratorium on the use of the death penalty, asked all states ‘[t]o comply with their obligations under Article 36 of the 1963 Vienna Convention on Consular Relations, particularly the right to receive information on consular assistance within the context of a legal procedure’.47 41

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International Convention for the Protection of All Persons from Enforced Disappearance, New York, 20 December 2006, in force 23 December 2010, UN Doc. A/61/448, 2716 UNTS 3, Arts. 17(2)(d) and (e). As of 1 March 2018 fifty-eight states had ratified or acceded; another forty-nine had signed. UNGA, Resolution 40/144, Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live, 13 December 1985, UN Doc. A/RES/40/144, Art. 10. UNGA, Resolution 43/173, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 9 December 1988, UN Doc. A/RES/43/173, principle 16(2). See UN Committee on the Elimination of Racial Discrimination, General Recommendation XXXI on the Prevention of Racial Discrimination in the Administration and Functioning of the Criminal Justice System, 2005, UN Doc. A/60/ 18, pp. 98–108, paras. 23, 26(d) and 38(a) on the International Convention on the Elimination of All Forms of Racial Discrimination, New York, 21 December 1965, in force 4 January 1969, 660 UNTS 1. Committee on the Protection of the Rights of All Migrants and Members of Their Families, Concluding Observations on the Second Periodic Report of El Salvador, 2 May 2014, UN Doc. CMW/C/SLV/CO/2, paras. 26 and 27 as well as Concluding Observations on the Combined Second and Third Periodic Reports of Senegal, 3 May 2016, UN Doc. CMW/C/SEN/CO/2, paras. 30 and 31. IAComHR, The Death Penalty in the Inter-American Human Rights System:  From Restrictions to Abolition, 31 December 2011, OEA/Ser.L/V/II, Doc. 68, at section 7, p. 147. UNGA, Resolution 69/186, Moratorium on the Use of the Death Penalty, 18 December 2014, UN Doc. A/RES/69/186, para. 5(b).

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These statements reflect not only the functional importance of consular assistance but also that the individual is the bearer of the right. They also recognise the correlative duty of the arresting or detaining state to inform detainees about this right, to notify the appropriate consular authorities upon request and to provide them appropriate access to detainees.

34.5 European Developments Article 46 of the Charter of Fundamental Rights of the European Union takes a slightly different approach, acknowledging that every EU citizen ‘shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that member State’.48 While textually this provision individualises consular assistance, it clearly rests on an appreciation of its status as a right. Efforts have been undertaken within the EU to establish a common framework for consular protection, particularly for citizens of Member States that lack representation in the specific third country. In May 2012 a directive was issued concerning the rights of suspects or accused persons in criminal proceedings, providing in particular that they must promptly be given information concerning various procedural rights, including ‘the right to have consular authorities and one person informed’ about their detention.49 The subsequent EU Council Directive on Consular Protection (2015) expanded the right by requiring member states (including their embassies and consulates) to provide consular protection not only to their own citizens but also to ‘unrepresented’ citizens of other EU member states on the same conditions as provided to their own nationals.50

34.6 Domestic Implementation Some national legal systems (far short of a majority) now recognise the right to consular assistance in one form or another, through constitutional provisions, statutory enactments or other guidance, or through judicial remedies.51 For example, the 1999 Venezuelan Constitution provides that ‘[i]n the case of the arrest of foreign nationals, (male or female), applicable provisions of international treaties concerning consular notification shall also be observed’.52 In Australia, the right of non-Australian nationals to communicate with their consular officers is specified by statute.53 Domestic implementation of Article 36 itself, however, has clearly been inadequate. Despite having accepted an international obligation to provide consular assistance in accordance with

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Charter of Fundamental Rights of the European Union, Nizza, 7 December 2000, in force 1 December 2009, 2000/ C 364/01. EU, Council Directive 2012/13/EU on the Right to Information in Criminal Proceedings, 22 May 2012, OJEU L 142/1 (6.1.12). EU, Council Directive 2015/637 on the Coordination and Cooperation Measures to Facilitate Consular Protection for Unrepresented Citizens of the Union in Third Countries, 20 April 2015, OJEU L 106/1 (24.4.15), Art. 7(a). The stated purpose of authorising ‘unrepresented’ citizens to seek such protection was to facilitate the exercise of the rights contained in Art. 20(2) Treaty on the Functioning of the European Union (2007). See Quigley, Aceves and Shank, The Law of Consular Access, pp. 97–122; see also German Federal Constitutional Court, 2 BVR 2115/01, 2 BVR 2132/01, 2 BVR 348/03 (2006), para. 69. Constitution of the Bolivarian Republic of Venezuela (1999), Title III, Art. 44, available (translated) at www .venezuelaemb.or.kr/english/ConstitutionoftheBolivarianingles.pdf. Australia, Crimes Act 1914 as amended, s23P.

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Article 36, most states parties to the Convention have not effectively codified that right at the national level.54 The United States falls within that group; however, it has taken some steps to ensure compliance with Article 36. For instance, a uniform federal procedure for consular notification has been adopted by the US Department of Justice for situations involving the arrest and detention by federal authorities of foreign nationals on criminal charges. That procedure is explicitly intended to implement ‘obligations undertaken by the United States pursuant to treaties with respect to the arrest and detention of foreign nationals’, i.e. the Vienna Convention and bilateral consular conventions with similar requirements.55 In addition, some of the fifty constituent states have made consular notification a matter of state or local law. In California, officers must advise ‘known or suspected’ foreign nationals of their right to communicate with their consular officers upon arrest or detention for more than two hours.56 The Illinois statute requires officers to inform foreign nationals ‘of their right to have their consular officials notified, and if an individual chooses to exercise that right, a law enforcement official is required to notify the consulate’.57 Oregon’s law is similar: when taking into custody an individual who is ‘reasonably suspected’ to be a foreign national, the officer must ‘inform the person of the person’s right to communicate with an official from the consulate of the person’s country’.58 Yet neither the federal government nor most states or localities have implemented the Convention legislatively or codified a free-standing ‘individual right’ to consular assistance.59 However, the federal courts continue to confront a significant amount of domestic litigation involving failure to comply with Article 36, most involving situations in which foreigners were convicted in state courts of capital crimes. The main question in these cases has not been whether Article 36 provides an individual (or human) right of consular assistance. It has instead been about narrower and more technical issues of domestic law: the consequences of failing to raise the issue in a timely manner in the criminal proceeding at the state level and the limited role of federal courts in supervising those proceedings. In almost all cases the claims have not been presented until years after the individual’s arrest, trial and conviction in state courts, following several levels of appellate review, and only at the last moment when execution of the sentence was imminent. As a result, the issues have been decided in a unique (and politically charged) procedural posture. The US Supreme Court has addressed these issues in three frequently criticised but often misunderstood decisions. In Breard v. Greene, the Court noted that Article 36 ‘arguably confers on an individual the right to consular assistance following arrest’, but also subjects such right to the procedural rules of the forum state, so that ‘assertions of error in criminal proceedings must first be raised in state court in order to form the basis for relief’ in federal habeas proceedings.60 54

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The United Kingdom also lacks clear domestic implementation of its obligations under Art. 36. See A. Aust, ‘United Kingdom’, in D. Sloss (ed.), The Role of Domestic Courts in Treaty Enforcement (Cambridge: Cambridge University Press, 2009), p. 477. USA, 28 Code of Federal Regulations §50.5. The United States requires its consular officers abroad to visit an arrested or detained US citizen or national ‘as soon as possible following receipt of consular notification or information about the arrest from another source, such as the arrestee’s family or the media’. See USA, 7 Foreign Affairs Manual 422.1-1. California Penal Code §834c(a)(1) (1999). Illinois Code of Criminal Procedure Ch. 38, §103-1(b)(5). Oregon Revised Statutes §426.228 (9)(a) and Oregon Revised Statutes §181A.470. Oregon also requires all police officers to be trained in the requirements of the Vienna Convention on Consular Relations and to be able to identify situations in which they are required to inform individuals of their rights under the Convention. Oregon Revised Statutes §181A.470 (2015). Generally, see D. Stewart, ‘Weston Tribute: The Consular Notification Conundrum’ (2013) 21 Transnational Law & Contemporary Problems 685. US Supreme Court, Breard v. Greene, 523 US 371, 377 (1998).

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Since Breard did not assert his Convention claim in a timely fashion in the state courts, he could not claim a violation of those rights on federal habeas corpus review (under the ‘procedural default’ rule). Even if his claim had been properly raised, the Court found it ‘extremely doubtful’ that the violation would have resulted in the overturning of a final judgment of conviction absent some showing that the violation had an effect on the trial.61 The Court’s decision in Sanchez-Llamas v.  Oregon62 was also primarily about procedures and remedies, not rights. In this case, which involved the murder convictions of Honduran and Mexican nationals, the Court explicitly assumed (without deciding) that Article 36 grants individual rights, but noted that it expressly leaves implementation to domestic law, and nothing in the treaty mandates suppression of evidence or any other specific remedy in the event of a violation.63 While procedural default rules can be overcome in some circumstances (for instance if ineffective assistance of counsel has resulted in a ‘fundamental miscarriage of justice’),64 it said, federal courts lack the authority to require the states to exclude evidence from the trial as a remedy for a violation of Convention rights. In any event, the Court ventured, under the specific circumstances of that case, the trial court would not have suppressed any of the defendant’s incriminating statements as a result of the violation. In Medellín v.  Texas65 the issues were very different. The petitioner, a Mexican citizen convicted of capital murder in Texas, had raised his treaty claim in state courts, where it was rejected, and his subsequent federal habeas claim was denied based on the Court’s Breard decision. But while his appeal was pending, the ICJ issued its Avena decision, which specifically discussed his case. In an effort to respond to the ICJ’s call upon the United States to provide review and reconsideration ‘by means of its own choosing’,66 President George W. Bush issued a memorandum directing that the United States would ‘discharge its international obligations … by having State courts give effect’ to the Avena decision. The State of Texas challenged the legality of the president’s action. The Court held that neither the ICJ’s decision nor the president’s memorandum overrode the application of state procedural limits on filing successive habeas petitions. It did not directly address the question of individual rights under Article 36 but, as in earlier decisions, ‘assume[d], without deciding’ that it ‘grants foreign nationals an individually enforceable right’.67 Yet it concluded that under domestic law neither the ICJ’s judgment nor the president’s memorandum constituted directly enforceable federal law that pre-empted otherwise applicable state limitations on successive habeas petitions. Nearly all lower US courts to have addressed the issue since 2000, however, have held that the Vienna Convention does not itself establish a judicially enforceable right on the part of individual foreign nationals.68 Most have raised the question in the narrow context of attempting to overcome the procedural default rule, in deciding whether suppression of evidence is an appropriate remedy for a treaty violation, or in other technical situations.69 Only one federal appellate circuit has held that Article 36 directly confers individual rights on detained nationals that can 61 62 63 64

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Ibid., 375–376. US Supreme Court, Sanchez-Llamas v. Oregon, 548 US 331 (2006). Ibid., at 343 and 347. The so-called ‘equitable exception’ to the procedural default rule. US Supreme Court, Dretke v. Haley, 541 US 386, 393 (2004). US Supreme Court, Medellín v. Texas, 552 US 491 (2008). ICJ, Avena and Other Mexican Nationals (Mexico v. USA), para. 153(9). US Supreme Court, Medellín v. Texas, 552 US 491, 506 (2008), (note 4). See e.g. US Court of Appeals for the Fifth Circuit, Ramos v. Davis, 653 Fed.Appx. 359 (5th Cir. 2016). US Court of Appeals for the Second Circuit, Mora v. New York, 524 F.3d 183, 186–87 (2d Cir. 2008).

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be vindicated in private actions.70 The reluctance of other courts to follow this decision may reflect judicial deference to the role of the legislature in creating ‘new’ rights. In short, Article 36 has not been effectively implemented in domestic US law, nor have the courts clearly recognised a general, free-standing right to consular assistance. When a failure to provide consular assistance can be shown to have prejudiced the individual in question, US law does in fact provide potentially meaningful avenues of relief, including at the post-conviction stage. Yet the underlying failure of US authorities to ensure that foreigners are in fact given their right to consular assistance in a timely manner clearly needs to be addressed. The remedy is obvious: adoption of a statute, either at the federal level or in all the states (preferably through a ‘uniform’ law), or both. Appropriate legislative proposals have in fact been introduced but have not to date generated the necessary support.71

34.7 Assessment and Future Steps What was once considered the singular right of a sending state party under Article 36 is now properly denominated an individual right which can be asserted by a detainee against the detaining state. That right consists, at minimum, in having one’s state of nationality (or another state in its stead) notified of the detention and given access to the individual in question. Recognition of this right, while incremental, has been a significant achievement of advocacy, initially rooted in opposition to capital punishment, largely expressed in more general terms of international human rights rhetoric, and rapidly embraced by international courts. One might debate whether it is properly considered an evolutionary interpretation of the Vienna Convention or a new right grounded in customary international law (or even a peremptory norm). In light of its repeated endorsement at the international level, however, there is little room to deny that it exists or that it has been accepted as a human right.72 Certainly, its articulation in human rights terms has given it a broad appeal and powerful pedigree, but the difference between denominating it an ‘individual’ right and a ‘human right’ is more significant. An individual right would still be rooted in the Convention. Since human rights inhere in all human beings by virtue of their humanity regardless of nationality, place of residence, national or ethnic origin, or other status, entitlement to consular assistance on that basis would thus be detached from its Vienna Convention roots, applying to all individuals at the time of their arrest or detention in all foreign states. More important than this legal distinction is the proposition that consular assistance must be understood as a necessary, even indispensable aspect of the fundamental human right to due process and a fair trial. Of course, its components are procedural in nature, distinct from more abstract concepts as a right to truth or justice or mental health, but nonetheless critical in 70

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US Court of Appeals for the Seventh Circuit, Jogi v. Voges, 480 F.3d 822, 834 (7th Cir. 2007). Some lower courts have in fact come to that conclusion. See also US District Court for the Southern District of Texas, Tong v. Davis, Civ. No. 4:10–2355, 2016 WL 5661698 (S.D. Texas, 30 September 2016) and Supreme Court of Pennsylvania, Commonwealth v. Hannibal, 156 A.3d 197 (Sup. Ct. Pennsylvania, 22 November 2016). See e.g. the proposed Consular Notification Compliance Act 2011, S. 1194, 112th Cong. (2011). For other proposals, see C. Mallory, ‘Abolitionists at Home and Abroad: A Right to Consular Assistance and the Death Penalty’ (2016) 17 Melbourne Journal on International Law 51; N. Howell, ‘A Proposal for U.S. Implementation of Vienna Convention’s Consular Notification Requirement’ (2013) 60 UCLA Law Review 1224; C. Buys, ‘Reflections on the 50th Anniversary of the Vienna Convention on Consular Relations’ (2013) 38 Southern Illinois University Law Journal 57. See, for example, Quigley, ‘Vienna Convention on Consular Relations’, 25, contending that the right of consular access in Art. 36 ‘has become so generalized that today it is recognized as a customary right in the law of human rights’.

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protecting such substantive rights as the prohibitions against arbitrary arrest, detention, incommunicado detention or torture, the entitlement to humane conditions during detention, and the rights to know and understand the reasons for arrest, to legal counsel, and to a prompt appearance before a judge to challenge the lawfulness of the arrest and detention. In other words, consular assistance operates as a ‘gateway’ or ‘enabling’ right in the sense of opening the door to respect for and protection of other fundamental rights. By itself, it cannot guarantee a fair trial; but unless it is respected, a substantial risk of other abuses surely exists. In this sense, it is essential to due process, fair trial and equal treatment. Denominating it a ‘human right’ thus has concrete consequences, not merely rhetorical or demonstrative value. Yet some aspects of the right remain to be articulated. When, precisely, does it arise, and against whom can it be asserted? The ICJ’s view that it entails the right to be informed of one’s rights ‘without delay’ (not necessarily immediately upon arrest or detention, but as soon as it is realised or grounds exist to think that the person may be a foreign national) seems insufficient, since an individual unfamiliar with her rights may not reveal her foreign nationality promptly. The better approach would be to require states to inform all persons, at the time of detention (or at least when they are advised of their right to legal counsel) that if they are foreign nationals, they have the right to consular access and assistance. Is the right opposable to the state of nationality as well as the detaining state? Can it be waived or forfeited, and if so, by whom? Is an individual obliged to reveal his or her foreign nationality? An illegal immigrant might have seemingly good reasons for not doing so; if he or she does not, is the detaining state then excused from its obligations? What are the consequences of (and proper remedies for) a violation? In Avena, the ICJ called upon the United States to provide ‘review and reconsideration’ of the relevant convictions and sentences by means of its own choosing (that is, consistent with its domestic law), but left unclear the possible consequences of that review. Should they include annulment of conviction? Suppression of evidence? Reduction in sentence? Monetary damages? Perhaps most importantly, how can the right be made more effective? Simply declaring it a ‘human right’ will not resolve the problem. If states continue to observe it largely in the breach, what steps should be taken? Clearly, contentious proceedings before the ICJ or other international tribunals may help to call attention to the problem, but cannot, by themselves, resolve the question of compliance. A legally mandatory instrument is required. Two alternatives suggest themselves. The first is the proposal of a protocol to the Vienna Convention, detailing steps to be taken by states parties to give practical effect to this broadened understanding of Article 36. Since all but about fifteen states are today party to the Convention, a protocol might enjoy good prospects of wide ratification. Yet this approach would necessarily denominate the right as a treaty-based right. Another option might be to formulate model legislation for adoption by states, articulating the dimensions of consular assistance as a ‘human right’ and addressing the outstanding questions raised above. Such a proposal would not necessarily be tied to the Convention and could be formulated by an appropriate human rights entity. The largest challenge to this approach, of course, would be taking into consideration the significant differences in domestic legal systems around the world. In the end, it will not matter much whether consular assistance is considered ‘merely’ a treaty obligation, or an ‘individual’ right, or a genuine ‘human right’ unless it is given concrete effect in domestic legal systems. The label itself is only important if it leads to greater respect for and enforcement of the right.

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35 From a Human Right to Invoke Consular Assistance in the Host State to a Human Right to Claim Diplomatic Protection from One’s State of Nationality? Frédéric Mégret

35.1 Introduction The argument I am going to make in this short comment is inevitably broad brush. Rather than further discuss the particulars of David Stewart’s eye-opening views on the status of consular assistance in the host state, I want to examine what might be some of the indirect implications of such recognition, and whether it might be taken much further. In particular, I  want to suggest that if consular assistance is indeed a human right, then it is a human right that can be invoked both by individuals against the host state (as David Stewart argues) and also vis-à-vis the state of nationality. In other words, it takes two things for the right to consular assistance to be realised: for the host state to notify foreigners of their right to be assisted; and for the state of nationality to actually provide such assistance. Examining the latter involves consideration of the broader but neglected question of a state’s duty to its nationals abroad. As it turns out, although this is an issue that has typically been much less discussed than the host state’s obligations, it raises many more complex and substantial human rights questions. The host state’s duty under the Vienna Convention on Consular Relations1 is, after all, minimal, making it perhaps all the more shocking that state compliance has so frequently been found wanting. By contrast, if we do seriously start thinking about human beings’ rights abroad, the state of nationality’s obligation to its nationals is conceivably much broader. This is why in the literature on the issue there is often a slippage beyond mere consular assistance to a much broader body of obligations going all the way to ‘diplomatic protection’, i.e. the formal endorsement of the claims of nationals of a state in a state-to-state dispute.2 The two are evidently connected: for example, it is only because states of nationality exercised their diplomatic protection that cases concerning the right to consular assistance have been heard. For the sake of simplicity, I will focus on the jurisprudential argument, rather than explore in detail the case under positive international law. This seems particularly apposite when the task of conceptualising new rights is involved, and systemic and teleological considerations ought to guide us to understanding where a right to consular assistance might fit within the international legal order.

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Vienna Convention on Consular Relations, Vienna, 24 April 1963, in force 19 March 1967, 596 UNTS 261. S. Garibian, ‘Vers l’émergence d’un droit individuel à la protection diplomatique?’ (2008) 54 Annuaire Français de Droit International 119.

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35.2 The Right to Be Notified of the Right to Consular Assistance by the Host State as a Human Right I broadly concur with the notions that speaking of consular assistance in the host state as a human right is a possible interpretation of the existing positive international law, does not raise significant problems of coherence for the theory of human rights and, from a policy point of view, might be useful. Stewart is absolutely correct in emphasising that not every individual right under international law need be a human right; it could be just that – an individual right – although it must certainly also at a minimum be an individual right in order to be a human right. Clearly, consular notification is an obligation that traditionally exists for the benefit of states parties to the Vienna Convention, just as diplomatic protection more generally is conceptually only the vindication of state interests. Note that in many of the cases where the issue came up before international tribunals, the state of nationality was quite happy to present itself as invoking its own rights, in traditional public international logic, and the question of individual/ human rights was quite secondary. Nonetheless, the Vienna Convention could simultaneously have created or be reinterpreted today as creating a right directly vested in individuals. Because the Vienna Convention does not say this, the reasoning for establishing the emergence of an individual right is necessarily somewhat nebulous. It may be that the Vienna Convention must be understood as having stipulated a right for individual ‘third parties’ because it is, after all, individuals who stand to benefit most from being able to access consular assistance, whereas the violation of the right to be notified is less dramatic for the state of nationality. The fiction that only a state interest is involved in consular assistance has become stretched to the point that it is hard to square it with our understanding of the increasing role of the individual in the international system. In fact, the case for the existence of an individual right is surely dramatised if one claims that this right is also a human right: in that case, the right in question appears to be less the strangely unanticipated by-product of an international treaty but more an expression of some bottom-up human entitlement. In that respect, one could see the Vienna Convention as merely declarative rather than constitutive of a basic human right. But that, of course, begs the question of whether it is arguably a human right in the first place. From the point of view of positive international law, one can of course point to the fact that the Inter-American Court of Human Rights (IACtHR), for instance, has recognised consular assistance as a human right, whereas the International Court of Justice (ICJ) has only not said that it is not a human right. But how did the IACtHR itself come to that result? Reading Judge Cançado Trindade’s concurring opinion in Advisory Opinion OC-16/99 is instructive: the foundation of the right is almost entirely based on pious generalities about how international law is no longer what it used to be, and since it is henceforth largely there for the benefit of individuals, then international law must surely recognise consular assistance as a human right.3 This ‘magical’ style of legal thinking not only entirely avoids the question of conventional sources of international law, but from a human rights point of view also fails to provide us with a very pointed theory of why consular assistance specifically should be a human right. After all, in order to make a compelling case that consular assistance is a human right, one also needs to 3

IACtHR, The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99 of 1 October 1999, Ser. A, No. 16, Advisory Opinion OC-16/99, Concurring Opinion of Judge A.  A. Cançado Trindade, para. 35. See also A. A. Cançado Trindade, ‘The Humanization of Consular Law: The Impact of Advisory Opinion No. 16 (1999) of the Inter-American Court of Human Rights on International Case-Law and Practice’ (2007) 6 Chinese Journal of International Law 1.

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subsume that right within a broader theory of human rights. The status of a new human right will be all the stronger if it has both legal validity and makes jurisprudential sense. Here I think that Stewart is very helpful in providing us with pointers to why we would want to consider consular assistance as a human right. He does not, but one could usefully contextualise his claim within the actual context in which it was alleged that consular assistance was a human right. The cases brought by Paraguay, Mexico or Germany against the USA over failure to notify detainees of the possibility of consular assistance were not above all about making a point about consular assistance; they were, ultimately, about capital punishment, and seen by those abolitionist states as a right to life cause célèbre. In other words, from the outset the claim was about how the failure to be notified of one’s right to consular assistance might affect other rights; if anything, consular assistance is coopted into the human rights edifice because of its proximity to other rights. This makes a lot of sense and avoids reinventing the wheel. It is central to Stewart’s basic claim that the human right to consular assistance is a sort of ‘gateway right’. For example, it would be hard to argue that there was something ‘inherent in human beings’ that required them to have a right to consular assistance, because the right to consular assistance already presupposes the extraordinarily complex notion of there being an international system. It is much simpler to see the right to consular assistance as a corollary of, or in fact a part of, the right to be free from arbitrary detention and to a fair trial in a particular transnational context, rights whose own existence no longer require much justification. Of course, not everything that is conducive to rights is necessarily a right or helpfully described as such, and there is both a risk of endless regression and of dilution of rights discourse. Yet at that level of immediate nexus, it would be ironic if the individual could claim the violation of half a dozen fair trial rights, but not the relatively innocuous right to consular assistance, particularly as that right may occasionally be crucial to enjoying all the others. Here, though, one might pause and argue that although it is more than an individual right, it is not quite a human right: after all, it only applies to what were once known as ‘aliens’, and is therefore based on a quality of foreignness rather than the bare humanity associated with human rights. In arguing that it is a human right (just one exercisable by those humans who happen to be aliens), I think Stewart is on solid ground nonetheless. After all, international human rights law itself long ago embarked on the path of category or group-specific rights instruments, some of which, such as the Convention on the Rights of Migrant Workers,4 clearly apply to human beings who are part of the broader category of ‘aliens’. Nor is the idea that a human right can derive from both humanity and one’s status as citizen that strange:  it is already the case for some political rights such as the right to vote or stand for office. I return in the next section to how consular assistance can help open up a conversation about the ties that bind one to one’s country of nationality. In addition, according to Stewart, one may see the human right to consular assistance as emerging from a particular vulnerability of aliens as a result of being outside their state. This makes plenty of sense from a human rights point of view and stresses the role of human rights as a tool for responding to particular situations of vulnerability in the actual lived circumstances of human beings, rather than on the basis of abstractions. The vulnerability is evident: to be arrested in a foreign country can be a scary, traumatising experience. Citizens in their own

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International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, New York, 18 December 1990, in force 1 July 2003, 2220 UNTS 3.

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country, by comparison, will have less need to have their overall predicament explained to them as they will already be familiar with their own society’s cultural make-up. I would suggest another jurisprudential basis. One could see the granting of rights directly to the individuals who stand to benefit from them as boosting the effectivity of rights. There is a deep correlation between the idea that one may benefit from X and the idea that one ought to be able to invoke X oneself. Individuals may well be in the best position to know when and how to invoke their rights; they can do so strategically and in situ; and the invocation of their rights is more generally desirable as it constitutes them as subjects. There is a reason, in other words, that we have chosen to call human rights ‘human rights’ rather than state obligations (which are clearly the obvious corollary of human rights). This is especially true in the case of consular assistance or diplomatic protection, where the state may fail to complain that the human rights of its nationals have been violated, leaving said human beings with few recourses in the absence of a recognisable human right. It might sound a little pompous and extravagant to call a mere right to be notified of consular assistance a human right. But there are many human rights that are very discrete and technical. More importantly, in ascribing human rights status to the right and seeing it as a basic precondition to a fair trial, one can tie it to the package of procedural guarantees protected under that right. Stewart is in that respect absolutely right to point out that this can make a difference in terms of the remedies that are available both domestically and internationally. Finally, as suggested in the following section, the human rights-isation of consular relations potentially opens up an entirely new front in our conversations about new human rights.

35.3 The Neglected Dimension: The Right to Assistance and Protection from One’s Own State In this second section I want to suggest that Stewart may have opened a much larger and deeper debate than his chapter suggests, and that the ‘gateway right’ may be a gateway right to much more. There is no doubt that the question of the right to consular assistance has mostly arisen in light of the host state’s persistent refusal to recognise it. The view that the right to consular assistance is one to be asserted against the host state is reinforced by Article 36 of the Vienna Convention, and its vision is steeped in diplomatic relations. This is also where most of the litigation has occurred. After all, there has been no shortage, beginning with the USA, of host states that have been at the very least careless about guaranteeing the right.5 What this risks ignoring, however, is that the individual’s successful enjoyment of their right to consular assistance, put simply, depends not only on the host state but also on the state of nationality’s willingness to honour it. The right to consular assistance, in other words, is a right that ought not to be denied by the host state but also one that needs to be guaranteed effectively by action from the state of nationality. This also challenges the sense that rights of consular protection are owed by states to states, but in a different way. Stewart alludes to this when he hints at the question of whether the right is ‘also enforceable against the state of nationality’ and briefly surveys the EU’s ambiguous arrangements on the matter; but in my view he insufficiently distinguishes the issue, or at any rate this is not his focus.

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J. L. Weinman, ‘The Clash Between U.S. Criminal Procedure and the Vienna Convention on Consular Relations:  An Analysis of the International Court of Justice Decision in the LaGrand Case’ (2001) 17 American University International Law Review 857.

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As it happens, that the state of nationality will provide adequate consular services cannot be taken for granted. Even though one might think that a state of nationality has a vested interest in claiming rights that very much belong to it (even though they may also belong to the individual), in practice states may have all kinds of reasons for not offering vigorous consular assistance let alone diplomatic protection. The state of nationality may sacrifice the rights/interests of the individual for the sake of some foreign policy goal. Indeed, by analogy with the broader question of diplomatic protection, there were historically many cases where states refused to grant such protection, which was considered largely discretionary. The state may waive the right as a right that is owed to it. Less dramatically, it may not do everything in its power to provide prompt and diligent consular assistance, for example because it is scared of upsetting the host state or simply because it has insufficient consular resources. Constitutional and division-of-power issues may also arise as domestic courts hesitate to review state behaviour that might involve the conduct of foreign policy. What is interesting, and what I have already alluded to, is that whereas the obligation of the host state is rather minimalistic, being merely a duty to permit the state of nationality to provide consular assistance, the obligation of the state of nationality is potentially much more extensive. How far that state ought to go in protecting the rights of its nationals abroad is unclear, but there has clearly been discontent in a number of instances where it was felt that a state of nationality insufficiently pressed a host state in relation to the rights of its nationals.6 The problem is that what traditionally defines the right to consular/diplomatic protection, and what makes it difficult for an individual in a host state to operationalise it, is also what makes it difficult to make it into an effective right vis-à-vis one’s own state. If the right to offer consular assistance belongs to the state of nationality, then that state can complain that it is not being respected, but at the same time it can decide not to insist that the right be respected. In outlining the basic canon of diplomatic protection, for example, David Bederman emphasises that: The state ‘owns’ any claim it espouses on behalf of a national. The state thus has absolute discretion as to whether it will espouse the claim or not, whether it will subsequently settle or compromise the claim, and whether or how it will distribute the proceeds of the claim if it is successful.7

There is nothing in the Vienna Convention that forces the state of nationality to actually offer consular assistance. Similarly, the effort to include an article in the draft ILC report on diplomatic protection to the effect that states should as a rule espouse the claims of their nationals failed. All that states are obliged to do is: (1) Give due consideration to the possibility of exercising diplomatic protection, especially when a significant injury has occurred; (2) Take into account, wherever feasible, the views of injured persons with regard to diplomatic protection and the reparation to be sought.8 Having said that, it is not difficult to see how it might be problematic to consider that consular assistance is sufficiently a right to be asserted against the host state but not enough of one to 6

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A. Miller and F. Fionda, ‘Detained abroad: Are Canadians’ human rights protected?’, Global News, 18 March 2016, available at https://globalnews.ca/news/2585971/detained-abroad-are-canadians-human-rights-protected/. D. J. Bederman, ‘State-to-State Espousal of Human Rights Claims’ (2011) 1 Virginia Journal of International Law Online 3 at 5. International Law Commission, ‘Draft Articles on Diplomatic Protection with Commentaries’ (2006) II Yearbook of the International Law Commission Part 2.

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be asserted against one’s own state. Such reasoning seems to stop in mid-stream, upholding on the one hand what it has just dismantled on the other. There is something almost capricious and inconsistent about the idea that Mexico, Paraguay and Germany would argue vociferously for the USA to respect the right to consular assistance on the one hand (not to mention argue that it is a human right), and then casually deny (or offer a sub-par version of) provision of such consular assistance to their nationals based on some arbitrary use of discretion. For example, Mexico’s argument that consular assistance ‘is a fundamental human right that constitutes part of due process in criminal proceedings … this right as such is so fundamental that its infringement will ipso facto produce the effect of vitiating the entire process of the criminal proceedings conducted in violation of this fundamental right’,9 should be read as implying that, as far as Mexico is concerned at least, it will make good on its side in guaranteeing that right. If one goes down the human rights road, then one of the consequences is to force us to broadly reconsider what consular assistance ought to mean from the point of view of the human being, all the way up to diplomatic protection if need be. If we take the notion of consular assistance as an individual right seriously enough to argue that it is opposable to the host state, then normatively speaking there must surely be a strong argument that one has a right to a certain level of diligent protection abroad by one’s own state. And the converse is true: if the right is not invokable against one’s state of nationality, then the argument that it can be invoked against the host state is weak indeed. We risk being back where we started. I would add that the need for the right to consular assistance to be invokable vis-à-vis one’s own state also derives, fundamentally, from its nature as a human right, if it is to be a human right at all. In fact, the existence of the right to consular assistance as a human right means not only must the right be invokable by the individual himself, but also that it cannot be a right of the state at all. The reason is that if the right is waivable for some superior sovereign motif, then it is not really a human right, merely an individual right that can be withdrawn at a whim. This is something that the USA had spotted correctly as a matter of logic when it argued before the IACtHR that consular assistance could not be a human right, since it depended on some discretionary decision by the state of nationality.10 This is not the place to discuss positive law developments in detail, and because of space constraints my argument has been a logical-jurisprudential one rather than one rooted in more conventional legal analysis. There is no doubt that there is no current international legal consensus on states’ obligations towards their own nationals, although it has been argued in the broader context of diplomatic protection that absolute discretion is no longer au goût du jour.11 But I have suggested that the agitation around the duties of the host state will sooner or later lead the question to boomerang back home. Moreover, there is nothing inherently implausible about the state of nationality having certain obligations of protection towards its nationals

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ICJ, Avena and Other Mexican Nationals (Mexico v. USA), Judgment, 31 March 2004, ICJ Reports 2004, pp. 60–61. According to the USA: ‘The Vienna Convention on Consular Relations is neither a human rights treaty nor a treaty “concerning” the protection of human rights. Instead, it is a multilateral treaty “of the traditional type concluded to accomplish reciprocal exchange of rights for the mutual benefit of the contracting States” … the intent of the Vienna Convention on Consular Relations is to establish legal rules governing relations between States, not to create rules that operate between States and individuals … Not every obligation of States regarding individuals is perforce a human rights obligation. Nor does the fact that one provision in the Vienna Convention on Consular Relations may authorize beneficial assistance to certain individuals in certain circumstances transform the Vienna Convention into a human rights instrument or a source of the human rights of individuals’: IACtHR, Advisory Opinion OC-16/99, para. 26. Garibian, ‘Vers l’émergence d’un droit individuel à la protection diplomatique?’

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abroad, as attested, for example, by the fact that some constitutions compel the state to exercise such protection.

35.4 Conclusion The case that consular assistance is already a human right is fairly strong. What is unclear, as Stewart argues, is what the implications of it being a human right are. Stewart makes a strong case that as a corollary to fair trial rights, the denial of the right to consular assistance takes on an entirely different connotation. I have suggested, in addition, that thinking about the nature of the right to consular assistance inevitably sets us on a path where the even more significant question is perhaps the nature of the claims one has towards one’s own state when abroad. In this conclusion, I want to briefly chart three ways in which the idea of a broader regime of rights for foreigners might open up a considerable space for rights development. First, the emergence of a human right to consular assistance combined with rights one has as a citizen abroad could be seen as predicated on the need to give a sort of rights credence and protection to the phenomenon of human mobility. The international law of human rights is classically premised on a model in which human rights are implemented domestically, but with little attention to the peculiar transnational predicament of those who, in ever-increasing numbers, live outside their state. Refugee and migration law cater to the legality of movement, but not to the long-term consequences of not being under the relatively protective reach of one’s state of nationality. In that respect, international human rights law could reconnect with an earlier international law of the ‘protection of aliens’, which formed one of the often unacknowledged origins of the contemporary international human rights regime. It would do so, however, less by endowing states with sui generis rights, and more by vesting human beings with rights claims directed at both host state and state of nationality. A second possible way of seeing this development is as part of a broader effort to redirect the human rights project to the normative structure of public international law itself. International human rights law, whether in matters of immunities or the regulation of violence, has tended to take the international system ‘as it is’ and, with a few exceptions, has focused on the state’s role in violating rights. A system of states may well be justifiable as the best system under fundamental human rights theory, but this does not mean that international human rights law should not dedicate efforts to correcting some of the negative ramifications for rights of that international system. It is often forgotten that Article 28 of the Universal Declaration of Human Rights reads: ‘Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.’12 It could be argued that such an order is one in which the role of international human rights law is to smooth out the potential human rights shortfall that results from human mobility across borders that are pure artefacts of an inter-state system. Finally, the very methodology by which consular assistance may be reinterpreted as a human right suggests what could be a broader blueprint for thinking about new rights. If one can transform an obligation owed by states to states into a human right merely on the basis that it is a crucial vector of the protection of such rights, then to what extent might not other inter-state obligations which human beings stand to benefit from, but which were not traditionally understood to create rights for them, nonetheless create such rights? In its draft General Comment on 12

UNGA, Resolution 217A on Universal Declaration of Human Rights, 10 December 1948, UN Doc. A/RES/3/217 (III) A.

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the right to life, for example, the Human Rights Committee recently found that this right could be violated in cases of unlawful war, thus seemingly making human beings direct recipients of the traditionally inter-state obligations under the jus ad bellum.13 Beginning with the simple question of whether a human right to consular assistance exists, one may thus engage in a series of incremental and imperceptible changes, the overall result of which is to unravel the very fabric of the classical international system.

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CCPR, General Comment No. 36: The Right to Life (Art. 6 ICCPR), 30 October 2018, UN Doc. CCPR/C/GC/36, paras. 69–70.

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Governance Rights

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36 Remnants of a Constitutional Moment The Right to Democracy in International Law Sigrid Boysen

36.1 The Normative Backbone of a Transformed International Legal Order? The international right to democracy lies at the core of the development of public international law since the 1990s. Assessment of its proper meaning is all the more difficult as both vigorous opponents and ardent proponents of this legal concept see their position confirmed by the path international law has taken after the end of the Cold War. Its advocates usually point to the fact that, since the end of the Cold War, democracy has adopted a crucial role in the international legal order and offer optimistic narratives of the fundamental legal changes brought about by democracy.1 The ramifications of these changes have been conceptualised in different ways. While some authors put forward a human rightsbased approach in the form of a right to political participation,2 a right to democratic governance,3 a right to free and fair elections4 or a moral human right to democracy,5 others resort to an expanded concept of the right to self-determination6 or state ‘an international customary 1

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T. Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 American Journal of International Law 46; C. Cerna, ‘Universal Democracy:  An International Legal Right or the Pipe Dream of the West?’ (1995) 27 New York University Journal of International Law and Politics 329; J. Ibegbu, Right to Democracy in International Law (Lewiston: Mellen Press, 2003); F. Tesón, ‘The Kantian Theory of International Law’ (1992) 92 Columbia Law Review 53. For an overview of how participatory rights emerged in international law, see G. Fox, ‘The Right to Political Participation in International Law’ (1992) 17 Yale Journal of International Law 539. Compare A. Buchanan, ‘Recognitional Legitimacy and the State System’ (1999) 28 Philosophy & Public Affairs 46 at 59, who argues for a concept of ‘minimal’ democracy as a requirement for recognition, and later extended this concept to include a basic right to democracy in A. Buchanan, Justice, Legitimacy, and Self-Determination (Oxford: Oxford University Press, 2007), p. 147. Fox, ‘The Right to Political Participation’. See also C. Binder, ‘International Election Observation by the OSCE and the Human Right to Political Participation’ (2007) 13 European Public Law 133; C. Hanisch, ‘A Human Right to Democracy’ (2015–2016) 35 Saint Louis University Public Law Review 233 at 234. Franck, ‘The Emerging Right to Democractic Governance’, 46; Ibegbu, Right to Democracy; R. Ezetah, ‘The Right to Democracy: A Qualitative Inquiry’ (1997) 22 Brooklyn Journal of International Law 495 at 506. Cerna, ‘Universal Democracy’, 329; compare A. Johns, ‘The Case for Political Candidacy as a Fundamental Human Right’ (2016) 16 Human Rights Law Review 29–54. T. Christiano, ‘An Instrumental Argument for a Human Right to Democracy’ (2011) 39 Philosophy & Public Affairs 142; T. Christiano, ‘An Egalitarian Argument for a Human Right to Democracy’, in C. Holder and D. Reidy (eds.), Human Rights: The Hard Questions (Cambridge: Cambridge University Press, 2013), p. 301. P. Thornberry, ‘The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federalism’, in C. Tomuschat (ed.), Modern Law of Self-Determination (Dordrecht: Nijhoff, 1993), pp. 134–137; A. Rosas, ‘Internal SelfDetermination’, in C. Tomuschat (ed.), Modern Law of Self-Determination (Dordrecht: Nijhoff, 1993), pp. 241–246;

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obligation to be democratic’.7 Some authors even combine these conceptualisations to justify a legal requirement for the democratic origin of governments in international law.8 Meanwhile, critics question the narrative of an emerging right to democratic governance and highlight the failed promises and potentially imperialistic impact of ‘democratisation’ after 1989:  the efforts on the part of the United Nations to establish democracy in rebuilding postconflict societies have largely failed and in many cases have ignited further conflict.9 From this perspective, a human right to democracy could be used as a legal basis for intervention in countries that lack it.10 Not tolerating societies that respect human rights but are not fully liberal, i.e. ‘decent’ societies in the Rawlsian terminology, a human right to democracy would violate the right to self-determination and impose a Western or liberal world-view on societies organised around a common good or social harmony conception.11 A human right to democracy would thus require local adoption, clarity about the elements of the right and some kind of enforcement mechanism.12 Last but not least, this Western world-view seems more questionable than ever: authoritarian forms of illiberal democracy are on the rise in Eastern Europe, Turkey and, most recently, the United States. Against this background, there hardly seems to be a case for democracy as an essential building block of post-conflict institution-building, let alone as a human right. While it is true (and hardly surprising) that democracy has not been able to serve as a panacea for all ills faced by the international community, it is also true that the ideal of democratic governance did not vanish throughout the 1990s, but has become ‘the touchstone of legitimacy’13 for any new government, and has perpetually been claimed and advanced in events like the Arab Spring, as well as pro-democratic interventions in Africa in the framework of regional organisations.14 From this perspective, an international democratic principle seems better suited to be the normative backbone of a transformed international legal order than a human right to democracy. While both concepts have to be aware of intrinsic imperialistic tendencies,15 the question remains

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A. Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge University Press, 1995), p. 311; S. Benhabib, ‘Is There a Human Right to Democracy?’ Beyond Interventionism and Indifference’, in C. Corradetti (ed.), Philosophical Dimensions of Human Rights: Some Contemporary Views (Dordrecht: Springer, 2012), p. 195. For critique, see T. Christiano, ‘Self-Determination and the Human Right to Democracy’, in M. Renzo, R. Cruft and S. Liao (eds.), Philosophical Foundations of Human Rights (Oxford: Oxford University Press, 2015), p. 476. J. d’Aspremont, ‘The Rise and Fall of Democracy Governance in International Law’ (2011) 22 European Journal of International Law 549. A. Peters, ‘Dual Democracy’, in J. Klabbers, A. Peters and G. Ulfstein (eds.), The Constitutionalization of International Law (Oxford: Oxford University Press, 2009), p. 277. T. Carothers, ‘Empirical Perspectives on the Emerging Norm of Democracy in International Law’ (1992) 86 Proceedings of the American Society of International Law 261. Examples from the 1990s include Haiti and Angola: see Franck, ‘The Emerging Right to Democratic Governance’, 91–93. S. McLaughlin Mitchell and P. Diehl, ‘Caution in What You Wish For’ (2012) 48 Stanford Journal of International Law 289; See e.g. W. Reisman, ‘Coercion and Self-Determination: Construing Article 2(4)’ (1984) 78 American Journal of International Law 643; W. Reisman, ‘Humanitarian Intervention and Fledgling Democracies’ (1994) 18 Fordham International Law Journal 794; W. Reisman, ‘Unilateral Action and the Transformations of the World Constitutive Process’ (2000) 11 European Journal of International Law 3. See C. Gould, ‘The Human Right to Democracy and Its Global Import’, in C. Holder and D. Reidy (eds.), Human Rights: The Hard Questions (Cambridge: Cambridge University Press, 2013), p. 285. H. Charlesworth, ‘Is There a Human Right to Democracy?’, in C. Holder and D. Reidy (eds.), Human Rights: The Hard Questions (Cambridge: Cambridge University Press, 2013), p. 281. See d’Aspremont, ‘The Rise and Fall of Democracy Governance’, 549. M. Olivier, ‘The Emergence of a Right to Democracy: An African Perspective’, in C. Panara and G. Wilson (eds.), The Arab Spring: New Patterns for Democracy and International Law (Leiden: Nijhoff, 2013), p. 29. A. Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2004), pp. 215 and 246; C. Miéville, Between Equal Rights (Leiden: Brill, 2005), pp. 238ff; W. Rech, ‘International Law, Empire, and the Relative Indeterminacy of Narrative’, in M. Koskenniemi, W. Rech and M. Fonesca (eds.), International Law and Empire (Oxford: Oxford University Press, 2017), p. 58.

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whether the recognition of a human right to democracy could resolve some of the imminent threats to democracy all over the world. From this perspective, it could be argued that it is precisely because democracy and human rights have not gone hand in hand over the last twenty-five years, that we now witness the rise of ‘intolerant or illiberal democracies’.16 Finally, many decades after Karl Polanyi’s analysis of the interwar period,17 there is quite a lot of evidence that democracy is deeply compromised by excessively free markets that current politics seem largely unable to contain,18 which re-raises the question of an individual right to democracy with new urgency. In an attempt to capture these conflicting issues, the analysis will proceed in six steps. The chapter will first reconsider the references to democratic government in international law before 1989 and show how these early forms of election-focused rights of political participation were watered down in the East–West confrontation of Cold War politics (Section 36.2). It will then review the conceptual spread of the right to democracy in international legal scholarship and practice since Thomas Franck’s seminal article (1992) and the UN Commission on Human Rights (CHR) resolution ‘Promotion of the Right to Democracy’ (Section 36.3). When a new democratic era was proclaimed, Western concepts of government, society, institutions and rights were often taken for granted and incorporated in multiple regional human rights regimes (Section 36.4). However far reaching these commitments may seem, a closer analysis reveals the potentially imperialistic impact of a universalised concept of democracy (Section 36.5) and deep-rooted uncertainties as to their legal content and their character as a right (Section 36.6). Thus the key question is how the right to democracy relates to established international human rights (Section 36.7). The chapter argues that we cannot think of the right to democracy in terms of a human right among others with a similar conceptual structure and analogous legal effects. Unlike a legal right, it embodies the quintessential notion that those human rights themselves have a collective – and hence political – meaning.

36.2 The Evolution of Democratic Guarantees in International Human Rights Treaties Prior to the developments of 1989–91, democracy was in large part neglected as an object of international legal scholarship and practice. If the topic belonged to law, it belonged to national constitutional law. International regulation of domestic governance was correspondingly scarce and confined to outer limits in the form of the prohibition of apartheid and fascist political systems19 and limitations to the exercise of power by governments through human rights law. Addressing some procedural aspects of popular sovereignty and representative democracy, the relevant instruments carefully omitted the term ‘democracy’ and endorsed an election-focused notion of participation in government. In this vein, Article 21 of the 1948 Universal Declaration of Human Rights (UDHR)20 states: 16

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G. Fox and G. Nolte, ‘Intolerant Democracies’ (1995) 36 Harvard International Law Journal 1; M. Koskenniemi, ‘Intolerant Democracies: A Reaction’ (1996) 37 Harvard International Law Journal 231 at 235; F. Zakaria, ‘The Rise of Illiberal Democracy’ (1997) 76 Foreign Affairs 22; J. d’Aspremont, ‘Legitimacy of Governments in the Age of Democracy’ (2006) 36 New York University Journal of International Law & Politics 877 at 913ff. K. Polanyi, The Great Transformation (New York: Rinehart, 1944). W. Streeck, ‘The Crises of Democratic Capitalism’ (2011) 71 New Left Review 5. See International Convention on the Suppression and Punishment of the Crime of Apartheid, New  York, 30 November 1973, in force 18 July 1976, 1015 UNTS 243; International Convention on the Elimination of All Forms of Racial Discrimination, New York, 21 December 1965, in force 4 January 1969, 660 UNTS 195, Art. 3. UNGA, Resolution 217A on Universal Declaration of Human Rights (UDHR), 10 December 1948, UN Doc. A/Res/ 217 (III) (A).

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(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. (2) Everyone has the right of equal access to public service in his country. (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. Dispute was inevitable:  during the sessions of the Drafting Committee every single feature describing the democratic process was heavily discussed.21 The Belgian proposal to add a reference to the plurality of parties, which was considered as ‘essential to the efficient functioning of the democratic system’,22 was promptly rejected by the representative of the Soviet Union, who responded that ‘in his country, the bourgeois class had ceased to exist. There thus remained only workers and peasants’, which led to his conclusion that under the prevailing Soviet system there was ‘no justification for the creation of other parties’ and that the Belgian amendment was ‘absolutely irreconcilable with the social structure of certain Member States’.23 Given these controversies, it is hardly surprising that the 1966 International Covenant on Civil and Political Rights (ICCPR)24 took a similar approach and included a right to political participation in Article 25 that carefully omitted the term ‘democracy’.25

36.3 ‘Cosmic Changes’: A Right to Democratic Governance It was the end of the Cold War that changed the scene. In 1992 Thomas Franck’s seminal article ‘The Emerging Right to Democratic Governance’26 described ‘cosmic changes’ in the role of democracy and concluded: Both textually and in practice, the international system is moving toward a clearly designated democratic entitlement, with national governance validated by international standards and systematic monitoring of compliance. The task is to perfect what has been so wondrously begun.27

While Franck’s account still seemed somewhat utopic and infused with a spiritual language, it met with response in state practice. In 1999 the then UN Commission on Human Rights adopted a resolution entitled ‘Promotion of the Right to Democracy’.28 It endorsed a ‘right to democratic governance’ alongside civil and political rights such as the freedom of expression, ‘universal and equal suffrage’, procedural rights concerning elections as well as the ‘right of citizens to choose their governmental system through constitutional or other democratic means’. Introducing the draft resolution, the US representative stated that

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See Economic and Social Council (ECOSOC), Report of the Commission on Human Rights, 17 December 1947, UN Doc. E/600/Annex A, p. 23. See J. Morsink, The Universal Declaration of Human Rights (Philadelphia: University of Pennsylvania Press, 1999), p. 59. Morsink, Universal Declaration of Human Rights, pp. 60–61. Ibid. International Convention on Civil and Political Rights, New York, 16 December 1966, in force 23 March 1976, 999 UNTS 171. The Human Rights Committee referred to Art. 25 as ‘the core of democratic government based on the consent of the people’: General Comment No. 25 (Art. 40(4) ICCPR), 12 July 1996, UN Doc. CCPR/C/21/Rev.1/Add.7, para. 1. Franck, ‘The Emerging Right to Democratic Governance’, 46. Ibid., 91. CHR, Resolution 1999/57 on Promotion of the Right to Democracy, 27 April 1999, UN Doc. E/CN.4/RES/1999/57.

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it recognized the fundamental point that democracy was itself a human right and noted the indispensable role of democratic participation in all human rights. Democracy was both a means to promoting human rights and an end in itself … it was time that all members of the Commission supported the notion that the right to democratic governance was not just a privilege, removable at the will of a Government, but a fundamental human right.29

Although the draft resolution was co-sponsored by almost all members of the Commission, it was the explicitly rights-based terminology that evoked severe criticism. the Indian representative was critical that the legal framing of a ‘right’ tended needlessly to politicize an essentially promotional concept, and raised questions and legal issues that found little support in international human rights instruments.30

The representative of Pakistan added that [h]is Government … wondered whether it was legitimate or wise to propound something that could later be promoted as a legal concept. He hoped that that was not the intention of the sponsors, and that the phraseology of ‘the right to democracy’ was being used more in a political and ethical sense than in a legal one.31

The representatives of the Russian Federation and Cuba expressed similar objections. The ensuing proposed amendment to delete the words ‘the right to’ from the title of the draft resolution32 was rejected by 28 votes to 12, with 13 abstentions. In the end, the resolution was adopted by 51 of the 53 members of the Commission with only China and Cuba abstaining. Unsurprisingly, the resolution remained a monolith. There were no further resolutions from the CHR, or its successor the Human Rights Council (UNHRC), that endorsed a ‘right to democracy’. Later resolutions by the CHR silently dropped the rhetoric of a right and rather highlighted the relationship between human rights and democracy. While the negotiations of the UDHR and the ICCPR had been shaped by the East–West confrontation of the Cold War, the new line of conflict manifested itself in the North–South divide. One strand of resolutions – mainly supported by the North, especially by the United States, Canada and the United Kingdom – focused on a concept of liberal democracy and promoted ‘free and fair elections’ as an essential feature;33 the other strand focused on the ‘promotion of a democratic and equitable international order’.34 These latter resolutions were typically supported by states such as China, Cuba, Saudi Arabia and Syria and rejected by all Northern states on the CHR. When it succeeded the CHR, the UNHRC continued the see-saw between the two lines of resolutions.35 29

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CHR, Fifty-fifth Session:  Summary Record of the Fifty-seventh Meeting, 30 April 1999, UN Doc. E/CN.4/1999/ SR.57, para. 1. CHR, Fifty-seventh Meeting, UN Doc. E/CN.4/1999/SR.57, para. 8. Ibid., para. 15. CHR, Fifty-fifth Session: Civil and Political Rights, 21 April 1999, UN Doc. E/CN.4/1999/L.64/Rev.4. CHR, Resolution 2000/47 on Promoting and Consolidating Democracy, 25 April 2000, UN Doc. E/CN.4/RES/2000/ 47; CHR, Resolution 2001/41 on Continuing Dialogue on Measures to Promote and Consolidate Democracy, 23 April 2001, UN Doc. E/CN.4/RES/2001/41; CHR, Resolution 2002/46 on Further Measures to Promote and Consolidate Democracy, 23 April 2002, UN Doc. E/CN.4/RES/2002/46; CHR, Resolution 2002/34, 22 April 2002, UN Doc. E/ CN.4/RES/2002/34; CHR, Resolution 2003/35, 23 April 2003, UN Doc. E/CN.4/RES/2003/35; CHR, Resolution 2005/ 29 on Strengthening of Popular Participation, Equity, Social Justice and Non-discrimination as Essential Foundations of Democracy, 20 April 2005, UN Doc. E/CN.4/RES/2005/29. CHR, Resolution 2001/65, 25 April 2001, UN Doc. E/CN.4/RES/2001/65; CHR, Resolution 2002/72, 25 April 2002, UN Doc. E/CN.4/RES/2002/72; CHR, Resolution 2003/63, 25 April 2003, UN Doc. E/CN.4/RES/2003/63; CHR, Resolution 2004/64, 21 April 2004, UN Doc. E/CN.4/RES/2004/64. The first type  – ‘Human rights, democracy and the rule of law’  – endorses the classical concept of liberal democracy:  UNHRC, Resolution 19/36, 23 March 2012, UN Doc. A/HRC/RES/19/36; UNHRC, Resolution 28/14, 26

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36.4 Regional Recognition The CHR is, however, not the only institution that spoke out for a right to democracy. The most developed commitments to human rights and democracy can be found in regional human rights regimes, which show a broad spectrum of instruments quite diverse in scope and telos. While some instruments adopt a rights-based approach, other regimes concentrate on a procedural concept, focusing on public participation in the political process. Finally, several regional regimes include provisions against unconstitutional changes of democratically elected governments. Starting with the Americas, the Organization of American States (OAS) dedicates an entire instrument to democracy, the Inter-American Democratic Charter (IADC),36 consisting of twenty-eight articles. Article 1 states: The peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it.

Article 3 IADC then goes on to enumerate essential elements of representative democracy such as respect for human rights, the holding of periodic, free and fair elections, a pluralistic system of political parties and organisations, and the separation of powers. As for implementation, Article 21 IADC grants the General Assembly of the OAS the power to suspend members in cases of unconstitutional changes of government. The Constitutive Treaty of the Union of South American Nations (UNASUR)37 of 2008 invokes democracy alongside citizen participation and universal human rights. Article 2 lists citizen participation and strengthening democracy as objectives of the Union. Since 2014 the Additional Protocol on Commitment to Democracy38 contains specific provisions that – similar to provisions of the African Union (AU) and the Economic Community of West African States (ECOWAS) – are directed against unconstitutional changes of government and ruptures in the democratic order (Art. 1). Similar regulations can be found in the Andean Community (AC) and the Mercosur (Southern Cone Common Market).39 The Association of Southeast Asian Nations (ASEAN) Charter40 has included democracy in its preamble and Article 1 (Purposes). Article 2 (Principles) mentions democracy alongside the

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March 2015, UN Doc. A/HRC/RES/28/14. The second type – ‘Promotion of a democratic and equitable international order’ – takes up the concepts favoured by the global South: UNHRC, Resolution 21/9, 27 September 2012, UN Doc. A/HRC/RES/21/9; UNHRC, Resolution 25/15, 27 March 2014, UN Doc. A/HRC/RES/25/15; UNHRC, Resolution 30/ 29, 2 October 2015, UN Doc. A/HRC/RES/30/29. OAS GA, Resolution on Inter-American Democratic Charter, 11 September 2001, OAS Doc. AG/RES.1 (XXVIII-E/01). Constitutive Treaty of the Union of South American Nations, Brasília, 23 May 2008, in force 11 March 2011, reprinted in (2009) 15 Law and Business Review of the Americas 465. Additional Protocol to the Constitutive Treaty of the Union of South American Nations on Commitment to Democracy, Georgetown, 26 November 2010, in force 19 March 2014, available on www.unasursg.org/en/ regulary-documents-of-unasur. For the Mercosur see the Protocolo de Ushuaia sobre compromiso democrático en el Mercosur, la republica de Bolivia y la republica de Chile (Ushuaia Protocol), Ushuaia, 24 July 1998, in force 24 July 1998, available at www .internationaldemocracywatch.org/attachments/112_1998_ProtocoloUshuaia-CompromisoDemocratico_ES.pdf. In 2012 the Mercosur suspended Paraguay’s membership following the impeachment and removal of then president Fernando Lugo. The suspension enabled the Mercosur to ratify the admission of Venezuela which had been blocked by Paraguay. In 2016 the Mercosur suspended Venezuela’s membership due to, inter alia, human rights violations and democratic deficits. See Andean Community Commitment to Democracy, Oporto, 27 October 1998, not yet in force, available at www.internationaldemocracywatch.org/attachments/205_additional-protocol-to-the-cartagenaagreement.pdf. Charter of the Association of Southeast Asian Nations, Singapore, 20 November 2007, in force December 2010, reprinted in (2010) 12 Singapore Year Book of International Law 263.

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‘adherence to the rule of law, good governance … and constitutional government’. In addition, the ASEAN Human Rights Declaration (2013)41 includes an election-focused right to participation in government that follows the approach of Article 21 UDHR. In spite of public pressure regarding Burma and North Korea, no sanctions have been taken yet to ensure democratic standards in the member states. In the same vein, the Arab Charter on Human Rights of Tunis (2004),42 adopted by the League of Arab States, acknowledges in Article 24 the right to political participation and free and impartial elections, among other fundamental democratic rights. Faced with the UN’s inability to forward an effective approach to assist states in post-conflict situations to build or rebuild democratic governance, African states and regional organisations have developed innovative rules and mechanisms that have served as a legal basis for pro-democratic and human rights-based interventions. Important examples include the interventions by the AU in São Tomé and Príncipe, by the ECOWAS in Liberia, Sierra Leone, Guinea-Bissau, Guinea, Côte d’Ivoire, Togo and The Gambia, as well as by the Southern African Development Community (SADC) in Lesotho and Madagascar.43 While the Charter of the African Union (1963)44 does not mention the word democracy, the Constitutive Act from 200145 lists the promotion of democratic principles and institutions, popular participation and good governance as objectives in Article 3(g). Article 4(m) further postulates ‘respect for democratic principles, human rights, the rule of law and good governance’. In 2012 the African Union adopted the African Charter on Democratic Elections and Government.46 Although the Charter does not contain a right to democracy, it includes provisions against unconstitutional changes of democratically elected governments (Art. 23). The African Charter on Human and Peoples’ Rights (ACHPR) of 198147 grants every citizen the right ‘to participate freely in the government of his country, either directly or through freely chosen representatives’ (Art. 13). Referring to this right, the African Commission on Human and Peoples’ Rights (AComHPR) has held that it is ‘hard to imagine how such a participatory right may be implemented without having recourse to elections’.48 The ECOWAS Treaty of 197549 makes no mention of democracy or elections. Judging by the aims set out in Article 2, its intentions were purely economic at that time. In the aftermath of its controversial intervention in Liberia in 1990, ECOWAS committed itself to ‘representative institutions’, stating that its member states

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ASEAN Human Rights Declaration, Phnom Phen, 18 November 2012, reprinted in (2012) 13 Asia-Pacific Journal on Human Rights and the Law 2 at 74. League of Arab States, Arab Charter on Human Rights, Tunis, 22 May 2004, in force 15 March 2008, reprinted (and translated) in (2006) 24 Boston University International Law Review 147 at 149. For a detailed analysis of several of the aforementioned interventions, see J. Levitt, ‘Pro-democratic Intervention in Africa’ (2006) 24 Wisconsin International Law Journal 785; J. Levitt, ‘African Interventionist States and International Law’, in O. Furley and R. May (eds.), African Interventionist States (Aldershot: Ashgate, 2001), p. 15. Charter of the Organization of African Unity, Addis Ababa, 25 May 1963, in force 13 September 1963, 479 UNTS 39. Constitutive Act of the African Union, Lomé, 11 July 2000, in force 26 May 2001, 2158 UNTS 3. African Charter on Democracy, Elections and Governance, Adis Ababa, 30 January 2007, in force 15 February 2012, available at www.achpr.org/instruments/charter-democracy/. OAU, African Charter on Human and Peoples’ Rights (Banjul Charter), Nairobi, 27 June 1981, in force 21 October 1986, 1520 UNTS 217. AComHPR, Constitutional Rights Projects v.  Nigeria, Communications 140/94, 141/94, 145/95, November 1999, para. 50. Treaty of the Economic Community of West African States (ECOWAS), Lagos, 28 May 1975, in force 20 June 1975, 1010 UNTS 17.

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believe in the liberty of the individual and in his inalienable right to participate by means of free and democratic processes in the framing of the society in which he lives.50

The revised ECOWAS Treaty of 199351 lists in Article 4(j) the ‘promotion and consolidation of a democratic system of governance in each Member State’ as one of its principles. Article 25 of the Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-Keeping and Security (1999)52 includes provisions against ‘an overthrow or attempted overthrow of a democratically elected government’. ECOWAS has intervened repeatedly within its member states in relation to undemocratic changes of government. The most recent intervention took place in The Gambia.53 The 2001 Protocol A/SP1/12/01 on Democracy and Good Governance54 postulates a range of requirements regarding democratic institutions as well as the election process itself. The Preamble of the SADC Treaty55 incorporates the guarantee of democratic rights as an important part of development and regional integration. Article 4(c) of the SADC Treaty proclaims democracy as one of the community’s principles, once again alongside human rights and the rule of law. Following its principles, Article 5(c) puts forward the objective to ‘consolidate, defend and maintain democracy, peace, security and stability’. The SADC’s stance regarding democracy among its member states has been perceived to be controversial, especially with regard to Zimbabwe. Meanwhile, the SADC has reacted harshly to the unconstitutional change of government that took place in Madagascar in 2009, suspending Madagascar’s membership and deploying a special envoy to resolve the situation. The European Union has included democracy, human rights and the rule of law as fundamental values in its founding treaties ever since the Maastricht Treaty. Article 2 of the Treaty on European Union (TEU)56 now states: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, nondiscrimination, tolerance, justice, solidarity and equality between women and men prevail.

Article 7 TEU contains a preventive mechanism enabling the European Council to determine the risk or existence of a serious and persistent breach by a member state of the values referred to in Article 2 and consequently to suspend the voting rights of the member state in question in the Council.57 While Title II (Arts. 9–12) contains specific provisions on democratic principles, 50

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ECOWAS, Declaration of Political Principles of the Economic Community of West African States, Abuja, adopted on 6 July 1991, A/DCL.1/7/91, para. 6. Revised Treaty of the Economic Community of West African States (ECOWAS), Cotonou, 24 July 1993, in force 23 August 1993, 2373 UNTS 233. ECOWAS, Protocol Relating to the Mechanism for Conflict Prevention, Management, Resolution, Peace-Keeping and Security, Lomé, 10 December 1999, provisionally in force 10 December 1999, ECOWAS Doc. A/P.1/12/99. See further A. de Wolf, ‘Rattling Sabers to Save Democracy in the Gambia’, EJIL Analysis, 1 February 2017, available at https://www.ejiltalk.org/rattling-sabers-to-save-democracy-in-the-gambia/. ECOWAS, Protocol on Democracy and Good Governance, Dakar, 21 December 2001, in force 20 February 2008, ECOWAS Doc. A/SP1/12/01. SADC, Treaty of the Southern African Development Community, Kinshasa, 17 August 1992, in force 5 October 1993, UNTS Reg. No. 52885. Consolidated Version of the Treaty of the European Union, Lisbon, 13 December 2007, in force 1 December 2009, 2702 UNTS 3; OJ 2012 No. C 326/13. Reacting to the continuing deterioration of the rule of law situation in Poland, on 20 December 2017, the Commission submitted a Reasoned Proposal for a Decision of the Council on the determination of a clear risk of a serious breach of the rule of law by Poland under Art. 7(1) TEU.

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neither the TEU nor the EU Charter of Fundamental Rights58 contains an individual right to democracy. However, Article 3 of the First Protocol of the European Convention on Human Rights (1952) requires Member States to ‘undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature’.59

36.5 Universalising Democracy? Notwithstanding these regional achievements, international law has taken an institutional approach and has limited the right to democracy to participatory rights confined to electoral periods. With respect to substantive commitments, the practice of both the CHR and the UNHRC clearly reflects a North–South divide in the perception of what constitutes or could constitute a right to democracy. The distinction between democratic and undemocratic states60 has been interpreted as a manifestation of the immanent imperialistic urge61 of Western political liberalism: democratic states can depart from the law and still be seen as acting legitimately, in the interests of cosmopolitan ideals, because they are democratic. Democratic states have these special privileges: they are not bound by international law, rather they make it.62

The contrasting juxtaposition of democratic and undemocratic states is seen as neo-colonialist: The civilized/uncivilized distinction thus continues to find presence in the post-colonial era, now assuming, amongst other things, the garb of a distinction between liberal/democratic and illiberal/undemocratic states.63

In this context, the right to self-determination figures prominently in the debate about a right to democracy since it – though highly conflicted in itself – seems to carry the promise of underlining the pluralistic dimension of the democratic principle. It has been argued repeatedly that a universal right to democracy could  – in contrast to this pluralistic vision  – realise its inherent imperialistic tendency and serve as a legal basis for interventions in states that are not considered as sufficiently democratic by these universalised standards.64 While it seems difficult not to acknowledge at least the threat of a neo-colonialist impetus in the democracy discourse, the intervention nexus does not seem compelling. Drawing a direct connection between the recognition of a human right and a possible intervention to protect it65 would confuse two distinct discussions (i.e. about the right itself and the scope of the international community’s 58

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Charter of Fundamental Rights of the European Union, Nizza, 7 December 2000, in force 1 December 2009, OJ 2000 No. C 364/1. (First) Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, Paris, 20 March 1952, in force 18 May 1954, 213 UNTS 221. See e.g. A.-M. Slaughter, ‘International Law in a World of Liberal States’ (1995) 6 European Journal of International Law 503. U. Mehta, Liberalism and Empire: A Study in Nineteenth-Century, British Liberal Thought (Chicago: The University of Chicago Press, 1999), p. 20. A. Anghie, ‘Of Critique and the Other’, in A. Orford (ed.), International Law and Its Others (Cambridge: Cambridge University Press, 2006), p. 395. B. Chimni, ‘Legitimating the International Rule of Law’, in J. Crawford and M. Koskenniemi (eds.), The Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2012), p. 301. Mitchell and Diehl, ‘Caution in What You Wish For’; Reisman, ‘Coercion and Self-Determination’; Reisman, ‘Humanitarian Intervention’; Reisman, ‘Unilateral Action’. Gould, ‘The Human Right to Democracy’, p. 288.

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responsibility to protect some human rights) and neglect the multifaceted functions of human rights that can define goals for new institutions, and ‘serve as a basis for critique and for social and political changes short of intervention’.66 But is there a common concept of democracy that we can refer to? Confronted with the accusation of the Cuban representative that the concept of a right to democracy as laid out in the 1999 resolution of the CHR was ‘rather vague, ambiguous, confused and incomplete’ and ‘set a dangerous precedent for the future’,67 the US representative responded that the resolution’s title just articulated the 2000-year-old democratic concept that the people themselves were in the best position to choose their form of government.68

The democratic concept of self-rule on the basis of equality among citizens does indeed have ancient roots, but as a form of mass politics and its identification with legitimate political authority it is a relatively recent phenomenon. In 1900 no country in the world had a democratic regime in the modern sense. The right to vote for women started being introduced around this time. Today, an overwhelming majority of states worldwide make at least the formal claim to democratic governance.69 The events of the Arab Spring have been interpreted as democratisation reaching the one region of the globe where democracy had not yet been established.70 Of course not all of the countries that call themselves democratic follow the Western concept of political democracy. Democracy, human rights (political liberalism) and the rule of law form the three pillars of Western political democracies, and although they are increasingly melded and together form the backbone of ‘global constitutionalism’,71 they have three distinct histories. It was the postCold War democratic wave of the 1990s that promoted the Western concept of democracy and restored the international consensus around the liberalism of human rights and democracy. The three threads of human rights, democracy and the rule of law became increasingly intertwined, effectively projecting the Euro-American political regime onto the international scene. This suggested some kind of natural ‘package deal’ and clouded the fact that the three have not always gone hand in hand in the course of Euro-American history; far from it. During the nineteenth century and the first half of the twentieth century Europe and the USA had mainly liberal regimes that recognised several civil and political rights (freedom of assembly, opinion, expression and religion). Yet they were not democracies, but rather liberal autocracies or liberal semi-democracies. In some kind of double twist, the scenario induced through the means of international law thus constituted the complete opposite of the model that unwound in the course of the history of Euro-American nation states, where democracy was only introduced after human rights and the limitations of power had been established. And the order 66 67

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Ibid. See also B. Beitz, ‘Human Rights as a Common Concern’ (2001) 95 American Political Science Review 269. CHR, Fifty-seventh Meeting, UN Doc. E/CN.4/1999/SR.57, para. 22. The Cuban representative went on to state that ‘[t]he promotion of democracy had to be based on full observance of the sovereignty of States and of non-interference in their internal affairs; an idea that should certainly have been included in the text. Any linkage between the concept of democracy and human rights should have made reference to the fact … that human rights were multifaceted, could not be restricted to civil and political rights but should also embrace economic, social and cultural rights and the right to development, all of which should be placed on an equal footing.’ Ibid., para. 24. See V-Dem Institute, Democracy Facing Global Challenges, V-Dem Annual Democracy Report 2019, p. 10, www .vdem.net/en/news-publications/democracy-reports/. V. Saranti, ‘Pro-democratic Intervention, Invitation, or “Responsibility to Protect”?’, in C. Panara and G. Wilson (eds.), The Arab Spring: New Patterns for Democracy and International Law (Leiden: Nijhoff, 2013), p. 169. A. Wiener et  al., ‘Global Constitutionalism:  Human Rights, Democracy, and the Rule of Law’ (2012) 1 Global Constitutionalism 1.

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evidently is not arbitrary or adjustable at will: while democracy has been gaining ground since the 1990s, human rights and the rule of law could not keep pace, leading to a complex discussion about ‘intolerant/illiberal democracies’.72 Meanwhile, arguments have emerged that it is problematic to endorse democracy in an international system that is in itself undemocratic.73 Here again, the types of reform discussed follow a concept of democracy that concentrates on transparency and broader participation in the decision-making process of international organisations, but do not endorse a right to democracy.74

36.6 A Legal Concept of Democracy The main difficulty thus evidently lies in defining a legal concept of democracy, which  – if designed to be in any way operational – cannot contain all the aspects and issues discussed in the context of ‘democracy’. First of all, the institutional settings usually associated with functioning democratic orders are to be distinguished from the theoretical criteria for democratic legitimacy. In general, democracy consists of three essential, interdependent elements. The first is the presence of institutions and procedures through which citizens can express effective preferences about alternative policies and leaders. The second is the existence of institutionalised constraints on the exercise of power by the executive. The third is the guarantee of civil liberties to all citizens in their daily lives and in acts of political participation. Other aspects of plural democracy, such as the rule of law, systems of checks and balances, freedom of the press and so on, are means to, or specific manifestations of, these general principles.75 It is evident that these institutional settings and political rights in many ways transcend a legal concept of democracy. This is especially true for a wide range of social factors that are part of a democratic order, but cannot fully be conceived in a legal perspective. With regards to the complexity of governmental systems around the globe and the ambiguity of state practice, the central commitment of democracy at the international level rests on two principles: popular control over collective decision-making and equality among citizens exercising that control.76 International legal practice suggests that the democracy we are speaking of is representative democracy. Defined by the origin of the power (popular sovereignty), it is essentially characterised by free, impartial and regular elections and insofar as is congruent with the internal dimension of the right to self-determination, since its minimum core must be a government that has the support of the relevant people and therefore represents them.77 Read against this distinction between popular sovereignty (democracy) and a form of government that accepts limits on its powers and respect for the civil and political rights of the individual (liberal regime), a ‘right to democracy’ would only address the source of power (as opposed to the exercise of power) and therefore be confined to electoral periods alone. It is only the combination of democracy and 72

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Fox and Nolte, ‘Intolerant Democracies’; Koskenniemi, ‘Intolerant Democracies: A Reaction’; Zakaria, ‘The Rise of Illiberal Democracy’; d’Aspremont, ‘Legitimacy of Governments’. B. Boutros-Ghali, An Agenda for Democratization (New  York:  United Nations, 1996); A. Buchanan, ‘Reciprocal Legitimation’ (2011) 10 Politics, Philosophy & Economics 5 at 6. J. Weiler, ‘The Geology of International Law’ (2004) 64 Zeitschrift für ausländisches öffentliches Recht 547 at 561; D. Bodansky, ‘Legitimacy in International Law and International Relations’, in J. Dunoff and M. Pollack (eds.), Interdisciplinary Perspectives on International Law and International Relations (New  York:  Cambridge University Press, 2013), pp. 321, 330ff. M. Marshall, T. Gurr and K. Jaggers, Polity IV Project: Political Regime Characteristics and Transitions, 1800–2017, Dataset Users’ Manual, 2018, available at www.systemicpeace.org/inscr/p4manualv2017.pdf. D. Beetham, ‘Democracy and Human Rights’, in J. Symonides (ed.), Human Rights (Aldershot: Ashgate, 1998), p. 71. J. Crawford, The Creation of States in International Law (Oxford: Clarendon Press, 2006), p. 334.

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political liberalism that constitutes liberal democracy, while their separation leads to ‘illiberal democracy’. The drafters of Article 21(3) UDHR, as well as the drafters of Article 25 ICCPR, clearly refrained from associating the two and from linking the democratic process of elections with the choice of a particular political regime, thus respecting the classical principles of the right of self-determination and non-interference. In sum, the relationship between democracy and the right to self-determination reflects the basic conflict underlying contemporary international law that oscillates between the two liberal purposes: between the requirements of classical liberal law, based on the free choice of its form of government associated with the principle of non-interference on the one hand, and the requirements of political liberalism on the other hand, imposing observance of human rights and a specific type of democracy that is pluralistic liberal democracy.

36.7 The Relationship between Human Rights and Democracy So what exactly do we mean when we speak of democracy as a human right? First of all, the rights-based conception seems to imply that there is a universal set of features that constitute ‘democracy’ and that can be applied to various national contexts.78 The right to life, liberty and security of the person, or the right to a fair trial and even the right to a healthy environment, can refer to a roughly similar notion of what constitutes the object of the respective right regardless of any particular legal or political tradition. If a right does not have a stable object but a plethora of different possible objects, it is more reasonable to speak of several respective non-universal rights, one for each object. This leads to the second difficulty we face in trying to find a normative argument for a right to democracy. Traditionally, democracy and human rights have been regarded as two different phenomena, human rights belonging to the international sphere and democracy to the national sphere as an internal matter under the sovereign prerogative of the respective state.79 As the doctrine of state sovereignty is becoming more and more permeable, the question about the relationship between human rights and democracy is increasingly seen in a new light. Many of the contributions that argue for the existence of a right to democracy reveal deeprooted disciplinary tensions and differences: a number of authors who argue for a human right to democracy do so from a political science and philosophical perspective.80 From an international law perspective, the situation looks somewhat different. The concept of a right constitutes a relationship between individuals and a state or supranational entity. Thus, while human rights define basic entitlements and contain legal guarantees to protect them, democracy describes the constitutional organisation of government.81

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Charlesworth, ‘Is There a Human Right to Democracy?’, p. 272; H. Charlesworth, ‘Democracy and International Law’ (2014) 371 Recueil des Cours 53. For a conceptual assessment of the relationship between human rights and democracy, see M. Nowak, ‘Article 25’, in UN Covenant on Civil and Political Rights: CCPR Commentary (Kehl: Engel, 2005), para. 1; S. Marks and A. Clapham, ‘Democracy’, in International Human Rights Lexicon (Oxford: Oxford University Press, 2005), pp. 61–70; Franck, ‘The Emerging Right to Democratic Governance’; Fox, ‘The Right to Political Participation’; Beetham, ‘Democracy and Human Rights’, p. 71; D. Beetham, Democracy and Human Rights (Cambridge: Polity Press, 1999); S. Wheatley, ‘Democracy in International Law’ (2002) 51 International and Comparative Law Quarterly 225. See e.g. J. Dryzek, ‘Can There Be a Human Right to an Essentially Contested Concept? The Case of Democracy’ (2016) 78 The Journal of Politics 357; Christiano, ‘An Instrumental Argument’, 301; Gould, ‘The Human Right to Democracy’, p. 285. Nowak, ‘Article 25’, para. 1.

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Democracy certainly does not fit into the concept of civil rights, which – in historical terms – are rooted in the liberal concept of freedom from the state. Guaranteeing a private sphere of the individual to be protected against interference, they explicitly entail the exclusion of certain areas from the public sphere. Meanwhile democracy – as the concept of self-determination – constitutes a procedural concept.82 This is why, when searching for a right to democracy, human rights scholars usually refer to political rights as, e.g., guaranteed in Article 25 ICCPR. Political rights enable the individual to actively participate in the process of political decision-making and therefore correspond to a political/democratic concept of freedom.83 However, even political rights can hardly provide a legal basis for a right to democracy. They put forward a mainly institutional account of democracy as a participatory right that remains procedural in character and carries only few specific substantial guarantees. While there are some cases in which political rights, and Article 25 ICCPR in particular, seem to amount to a genuine democratic right, the case law of the Human Rights Committee (HRC) also demonstrates the limited scope of political rights in this context. In the case Bwalya v.  Zambia, the HRC had to decide on the issue of the compatibility of an African one-party system with Article 25(a) ICCPR.84 The applicant had attempted to stand for parliamentary elections as a member of an opposition party and had as a result been subjected to threats and intimidation, and was finally forced into exile. The Committee found inter alia a violation of his right under Article 25(a) ICCPR and held that ‘restrictions on political activity outside the only recognized political party amount to an unreasonable restriction of the right to participate in the conduct of public affairs’.85 Meanwhile, in other cases the Committee has emphasised the prerogative of member states to define the modalities of the political participation guaranteed under Article 25 ICCPR. In the case Mikmaq Tribal Society v. Canada, the HRC found that the refusal of the Canadian Prime Minister to allow the Mikmaq, an Indian minority, to be represented at special constitutional hearings on aboriginal rights did not violate Article 25 ICCPR: Surely, it cannot be the meaning of article 25(a) of the Covenant that every citizen may determine either to take part directly in the conduct of public affairs or to leave it to freely chosen representatives. It is for the legal and constitutional system of the State party to provide for the modalities of such participation.86

However, in some cases the Committee found a violation of Article 25 ICCPR. Most of them concern electoral rights or procedures.87 In Paksas v. Lithuania the claimant, the former president of Lithuania who was removed from office following impeachment procedures, disputed a constitutional provision imposing a lifetime disqualification from candidacy in presidential or parliamentary elections after impeachment. Because the ‘rule-making process … was highly linked in time and substance to the impeachment proceedings initiated against him [the claimant]’, the Committee found that it ‘lacked the necessary foreseeability and objectivity and thus amount[ed] to an unreasonable restriction under Article 25(b) and (c) of the Covenant’.88 82 83 84 85 86

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C. Möllers, The Three Branches (Oxford: Oxford University Press, 2013), p. 2. Ibid. HRC, Bwalya v. Zambia, Communication No. 314/1988, 27 July 1993, UN Doc. CCPR/C/48/D/314/1988. Ibid., para. 6.6. See also Nowak, ‘Article 25’, para. 17. HRC, Mikmaq Tribal Society v. Canada, Communication No. 205/1986, 30 September 1980, UN Doc. Supp. No. 40 (A/39/40), paras. 5.4. and 5.5. Compare HRC, Matyus v. Slovakia, Communication No. 923/2000, 22 July 2002, UN Doc. CCPR/C/75/D/923/2000, para. 9.2, where the Committee found a violation of Art. 25 ICCPR. See e.g. HRC, Ignatane v. Latvia, Communication No. 884/1999, 25 July 2001, UN Doc. CCPR/C/72/D/884/1999, para. 7.4. HRC, Paksas v. Lithuania, Communication No. 2155/2012, 3 April 2014, UN Doc. CCPR/C/110/D/2155/2012, para. 8.4.

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The same case was also ruled on by the European Court of Human Rights (ECtHR), which found the provision to be disproportionate and added another – comparative – line of reasoning.89 Procedural rights often fall short of their intended outcome. To this effect, it has been pointed out that Article 25 ICCPR fails to resolve some basic issues: Countries of radically different political systems which included some form of electoral process ratified it, without considering themselves to be in instant violation of Article 25 and without expressing their willingness to conform to any one political tradition’s prescription of basic political processes.90

Or, in the words of the Lebanese representative in the sessions of the Drafting Committee of the UDHR, who put it more drastically: [T]he fact that elections would be held periodically and by secret ballot would not ensure that they would be free. The Nazi government could have subscribed to all of those ideas and its elections would still not have been free.91

Thus to deduce a right to democracy from the participatory rights of the ICCPR seems to fall short of the close connection between democracy and substantial human rights that is routinely emphasised.92 In this vein, it has been repeatedly pointed out that the right to selfdetermination in Article 1 ICCPR, which guarantees the right of a people to ‘freely determine their political status’, postulates a government that has the support of the relevant people and the sense to represent them, but does not necessarily entail a form of democratic government.93 Finally, the strategy to infer a right to democracy from political rights as guaranteed by Article 25 ICCPR seems not only to ignore the limited scope of participatory rights, but also to neglect the difference between an individual right and a constitutional principle about the organisation of government. It is precisely this tension that lies at the core of Article 25 ICCPR, which is expressed in individual terms (and the only ICCPR right that is confined to citizens), while at least the first two sections presuppose the context of a political society.94 The resulting confusion can be seen in the interpretation of Article 25: while most of the cases concerning Article 25 ICCPR were put forward in the context of the protection of minorities and indigenous peoples, the HRC in some cases strictly upheld the concept that Article 25 ICCPR constituted an individual right.95 Regional judiciary bodies have dealt in a more substantial way with the right to democracy, but face the same difficulties in determining universal core principles of a democratic system. The African Commission on Human and Peoples’ Rights ruled in Legal Resources Foundation v. Zambia that Zambia was in breach of Article 13 of the ACHPR, because it required presidential candidates to prove that both their parents were of Zambian nationality. However, the reasoning lacked any universal claim regarding the concept of democracy and invoked Zambian

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ECtHR, Paksas v. Lithuania (Appl. no. 34932/04), judgment, 6 January 2011, para. 106: ‘In the other States in this category, there is either no direct effect on the exercise of the right to stand in parliamentary elections, or the permissible res.’ H. Steiner, ‘Political Participation as a Human Right’ (1988) 1 Harvard Human Rights Yearbook 77 at 93. Drafting Committee, Third Session, UN Doc. A/C.3/3 (1948), p. 456 (Azkoul). J. d’Aspremont, L’état non démocratique en droit international: étude critique du droit international positif et de la pratique contemporaine (Paris: Pedone, 2008), p. 32. Crawford, The Creation of States, pp. 333–334; Charlesworth, ‘Is There a Human Right to Democracy?’, p. 276. Charlesworth, ‘Is There a Human Right to Democracy?’, p. 274. HRC, Diergaardt et al. v. Namibia, Communication No. 760/1997, 25 July 2000, UN Doc. CCPR/C/69/D/760/1996, para. 10.8.

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history instead.96 The case law of the ECtHR also takes a cautious approach and addresses the concept of democratic rights mostly in the context of electoral rights and procedure: in MathieuMohin and Clerfayt v. Belgium the Court established general principles for the application of Article 3 of Protocol No. 1 (Right to free elections). The Court held that Article 3 of the Protocol constituted an individual right in spite of its ‘inter-State colouring of the wording’.97 Second, it granted the member states ‘a wide margin of appreciation, given that their legislation on the matter varies from place to place and from time to time’.98 This margin of appreciation was reaffirmed in cases concerning prisoners’ right to vote. However, in Hirst v. United Kingdom (No. 2), the ECtHR held that an indiscriminate ban on voting infringed Article 3.99 The ECtHR showed a somewhat more substantial approach in two cases regarding the dissolution of political parties by the Constitutional Court in Turkey. In the first case, concerning the dissolution of the United Communist Party because of its naming and support for a separate Kurdish nation, the ECtHR recognised ‘the possibility it offers of resolving a country’s problems through dialogue’ as a fundamental principle of democracy and linked it to the freedom of expression.100 In the Refah case, however, the ECtHR drew limits on this freedom of expression of political parties.101 In a case that concerned the 10-per-cent threshold in parliamentary elections in Turkey, leading to 45 per cent of the votes not being represented in the composition of the parliament after the 2002 elections, the Court, although acknowledging that this was the highest threshold in Europe, again referred to the wide margin of appreciation and did not find a violation of democratic rights.102 The underlying problems in objectively defining minimum democratic standards protected by human rights, even in the comparatively homogenous settings of European states, have been explicitly addressed by the Court. In a speech on the relationship of democracy and human rights, the Court’s former president Jean-Paul Costa justified its cautious approach: A less rigorous approach is called for when it comes to the design of a State’s democratic system  – every such system is unique, reflecting the historical experiences of the State, its values, traditions and its aspirations. The role of an international human rights court cannot be to second-guess the choices made by the electorate or their representatives. Instead, it is to serve the interests of each State’s democratic system by maintaining its openness, integrity and effectiveness.103

36.8 Conclusion The discussion about a right to democracy reveals disciplinary controversies and reflects the changing historical context after the end of the Cold War. From an international law perspective, AComHPR, Legal Resources Foundation v. Zambia, Communication No. 211/98, para. 71: ‘To suggest that an indigenous Zambian is one who was born and whose parents were born in what came (later) to be known as the sovereign territory of the State of Zambia may be arbitrary and its application of retrospectivity cannot be justifiable according to the Charter.’ 97 ECtHR, Mathieu-Mohin and Clerfayt v. Belgium (Appl. no. 9267/81), judgment, 2 March 1987, para. 50. 98 Ibid., para. 54. 99 ECtHR, Hirst v. United Kingdom (No. 2) (Appl. no. 74025/01), judgment, 6 October 2005, para. 81. 100 ECtHR, United Communist Party v. Turkey (Appl. no. 133/1996/752/951), judgment, 1998, para. 57. 101 ECtHR, Refah Partisi v. Turkey (Appl. nos. 41340/98, 41342/98, 41343/98 and 41344/98), judgment, 13 February 2003, para. 98. See K. A. Alfadhel, The Right to Democracy in International Law: Between Procedure, Substance and the Philosophy of John Rawls (London: Routledge, 2017), p. 62. 102 ECtHR, Yumak and Sadak v. Turkey (Appl. no. 10226/03), judgment, 8 July 2008, para. 147. 103 J.-P. Costa, ‘The links between democracy and human rights under the case-law of the European Court of Human Rights’, 5 June 2008, available at www.echr.coe.int/Documents/Speech_20080605_Costa_Helsinki_ENG.pdf. 96

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claiming a right to democracy seems to carry the promotion of the undisputed benefits of democratic governance to excess. The assumption of a single right to democracy confounds rights and constitutional principles about the organisation of government, blurs the boundaries between international and national constitutional law, and reproduces an imperial legal paradigm. It is therefore necessary to refrain from a naive ‘universal’ concept of democracy and acknowledge that, if at all, democracy as an international legal principle must be understood as an essentially contested concept that assumes peculiar meanings according to different settings and contexts. This fundamental ambivalence goes far beyond the long-established North–South and West– East divides. It has become apparent that those oppositions capture only a fraction of the varieties of democratic government. Diverging conceptions of democracy have existed for more than 200  years, not only in Europe and the United States, but also in Latin America, India, East Asia, the Islamic World, Africa and Oceania. As the discourse on what constitutes democracy evolves on a global level, it still seems important to ‘decolonise’ the traditional research on democracy that, for a long time, disregarded non-Western conceptions of democracy as incomplete and deficient. The historical evolution of the Western democracies shows that these have evolved under completely different circumstances and, most importantly, in many cases in a different order. And the rise of illiberal democracies all over the world speaks to the fact that rule of law and democracy do not always go hand in hand. Against this background, democracy cannot be seen as a human right among others with a similar conceptual structure and analogous legal effects. In lieu thereof, it embodies the quintessential notion that those human rights themselves have a collective and, hence, political meaning. It is important to underline, though, that – as Hilary Charlesworth has pointed out – negating a right to democracy neither ‘undermine[s] the symbiotic relationship between the two concepts’, nor does it mean to dispute the intensely political function of human rights law.104 If this analysis argues for a more cautious concept of democracy, as put forward by Marks and Clapham, as ‘an argument, a critical tool, and a set of principles for political life in all its multifarious settings’,105 it does so on the basis of a relationship of ‘mutual dependence’.106 In this perspective, we are not looking for ‘cosmic changes’107 but for a concept of democracy in international law that – refraining from universalising Western concepts – contents itself with a supporting role and fosters national structures of democratic governance.

Charlesworth, ‘Is There a Human Right to Democracy?’, p. 281. Marks and Clapham, ‘Democracy’, p. 70. 106 Ibid., p. 70. 107 Franck, ‘The Emerging Right to Democratic Governance’, 47. 104 105

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37 The Human Right to Democracy in International Law Coming to Moral Terms with an Equivocal Legal Practice Samantha Besson*

37.1 Introduction This reply to Sigrid Boysen proceeds in four steps: (1) it maps international law practice in order to identify whether it protects a principle of democracy (PoD) or even a human right to democracy (HR2D); (2) it surveys the philosophical discussions pertaining to that right to see how they relate to it; (3) it explains why and how exactly our legal discussions would benefit from drawing on philosophical justifications; and (4) it argues that the equivocal state of international legal practice pertaining to the HR2D may actually be justified morally, and that we would be better off endorsing the existing international customary principle of democracy without looking for a corresponding legal human right that cannot be morally justified.

37.2 Mapping International Law Practice and Debates about the HR2D The question whether international law requires states to adopt a democratic regime has been an object of unabated controversy among international lawyers since 1945.1 Of course, like the corresponding practice itself, academic interest in democracy and the corresponding international law discussions have not been continuous since then. One may distinguish roughly three phases in the debate.2 (1) The preliminary discussions that pervaded the 1960s and 1970s, up to the 1980s, especially following the Nicaragua case,3 pertained to the content of both the principle of selfdetermination in general international law on the one hand, and of individual civil and political rights in international human rights law (IHRL), whether universal or regional,

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Many thanks to Anna Goppel, Claus Beisbart and Markus Stepanians for comments. This is, at least, the case in English, French or German legal scholarship, and in European and Western international law literature. On the East/West and North/South divides, see H. Charlesworth, ‘Is There A Human Right to Democracy?’, in C. Holder and D. Reidy (eds.), Human Rights – The Hard Questions (Cambridge: Cambridge University Press, 2013); B. S. Chimni, ‘Legitimating the International Rule of Law’, in J. Crawford and M. Koskenniemi (eds.), The Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2012). See also, albeit with a different chronology, J. d’Aspremont, ‘The Rise and Fall of Democracy Governance in International Law: A Reply to Susan Marks’ (2011) 22 European Journal of International Law 549 at 552–565, 570; S. Marks, ‘What Has Become of the Emerging Right to Democratic Governance?’ (2011) 22 European Journal of International Law 507. ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 27 June 1986, ICJ Reports 1986, p. 14, para. 263.

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on the other. They were focused on whether or not that principle and those human rights included a democratic principle and even an individual or collective right to democracy.4 (2) The most lively debates, however, started after the end of the Cold War and lasted from the 1990s to the late 2000s, in reaction to both the development of the corresponding liberal foreign policy of the United States and also US-led interpretative trends in various UN bodies, and in particular the General Assembly, the Human Rights Commission and human rights treaty bodies such as the Human Rights Committee.5 Those debates addressed the existence or emergence of an international customary norm of democracy and its consolidation as an interpretation of IHRL or of other regimes of international law, such as international development law or international territorial administration law. They were mostly concerned with whether or not that norm amounted to an actual human right to democracy on the one hand, and with its enforceability (e.g. through military intervention) on the other.6 (3) The most recent post-2010 discussions have been much less voluminous. They pertain to the resilience or not of the international democratic customary norm in the face of the spread of global capitalism and the rise of authoritarianism and populism. They focus mostly on what should become of the PoD in international law in the light not only of an eroding state practice of democracy, but also of growing criticism against imperialistic international interventions in domestic matters.7 To some extent, current scholarship about the HR2D pertains as much to a self-analysis of the scholarship as to a critical discussion of a practice, and maybe even more so as the latter has become increasingly difficult to ascertain.8 4 5

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See e.g. H. J. Steiner, ‘Political Participation as a Human Right’ (1988) 1 Harvard Human Rights Yearbook 77. See UN Human Rights Committee, General Comment No. 25: Article 25, 12 July 1996, UN Doc. CCPR/C/21/Rev.1/ Add.7. See e.g. F. R. Tesón, ‘The Kantian Theory of International Law’ (1992) 92 Columbia Law Review 53; G. H. Fox, ‘The Right to Political Participation in International Law’ (1992) 17 Yale Journal of International Law 539; A.-M. Slaughter, ‘Towards an Age of Liberal Nations’ (1992) 33 Harvard International Law Journal 393; T. M. Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 American Journal of International Law 46; J. Crawford, ‘Democracy and International Law’ (1993) 64 British Yearbook of International Law 113; C. Cerna, ‘Universal Democracy: An International Legal Right or the Pipe Dream of the West?’ (1995) 27 New York University Journal of International Law and Politics 289; B. Bauer, Der völkerrechtliche Anspruch auf Demokratie – Zur Rolle internationaler Organisationen im weltweiten Demokratisierungsprozess (Frankfurt:  Peter Lang, 1998); B. Roth, Governmental Illegitimacy in International Law (Oxford: Oxford University Press, 1999); S. Marks, The Riddle of All Constitutions – International Law, Democracy, and the Critique of Ideology (Oxford: Oxford University Press, 2000); R. Ben Achour, ‘Le droit international de la démocratie’ (2000) 4 Cursos Euromediterráneos Bancaja de Derecho Internacional 325; G. H. Fox and B. R. Roth, ‘Democracy and International Law’ (2001) 27 Review of International Studies 327; J. d’Aspremont, ‘Legitimacy of Governments in the Age of Democracy’ (2006) 38 New York University Journal of International Law and Politics 877; J. d’Aspremont, L’état non démocratique en droit international: étude critique du droit international positif et de la pratique contemporaine (Brussels:  Bruylant, 2008); H. J. Steiner, ‘Two Sides of the Same Coin? Democracy and International Human Rights’ (2008) 41 Israel Law Review 445. See e.g. N. Petersen, ‘The Principle of Democratic Teleology in International Law’ (2009) 34 Brooklyn Journal of International Law 33; S. Wheatley, The Democratic Legitimacy of International Law (Oxford: Hart, 2010); Marks, ‘What Has Become of the Emerging Right to Democratic Governance?’; d’Aspremont, ‘The Rise and Fall of Democracy Governance’; C. Pippan, ‘Democracy as a Global Norm: Has it Finally Emerged?’, in M. Happold (ed.), International Law in a Multipolar World (London and New York: Routledge, 2012); F. Ehm, Das völkerrechtliche Demokratiegebot: Eine Untersuchung zur schwindenden Wertneutralität des Völkerrechts gegenüber den staatlichen Binnenstrukturen (Tübingen:  Mohr Siebeck, 2013); J. Vidmar, Democratic Statehood in International Law:  The Emergence of New States in Post-Cold War Practice (Oxford: Hart, 2013); A. Magen, ‘The Democratic Entitlement in an Era of Democratic Recession’ (2015) 4 Cambridge Journal of International and Comparative Law 368; K. A. Alfadhel, The Right to Democracy in International Law: Between Procedure, Substance and the Philosophy of John Rawls (London: Routledge, 2017). See also d’Aspremont, ‘The Rise and Fall of Democracy Governance’, 565.

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Each of these discursive waves did not only have their international democracy champions such as, most famously, Fernando Tesón, Gregory H. Fox and Tom Franck in the second era, with their seminal 1992 and 1993 writings, but also their challengers. (1) In the 1980s most critics were defenders of state sovereignty and of the neutrality of international law with respect to internal matters such as political regimes.9 (2) In the 2000s they amounted to critics of the democratic or liberal peace project and grew out of anti-imperialist and post-colonialist postures.10 (3) Current critics disparage the international human rights project altogether, but they also express post-modern scepticism about international liberalism more generally.11 Based on this cursory survey of the practice, what is most striking is that, despite the longevity of the debate and, at times, its intensity, five dimensions of the requirement of democracy in international law remain entirely undetermined. Those five contested features of the international PoD are: (1) its normative existence: i.e. is it still an emerging norm that has failed to establish itself;12 is it established qua international law norm, but in danger of erosion;13 or is it a stable norm of international law? Alternatively, is it just a soft law norm,14 or even a mere goal15 or preference? (2) its normative type: i.e. is it a principle, an individual entitlement or right, a human right16 or an imperfect duty?17 (3) its sources:  i.e. does it derive from international treaties, international customary law,18 general principles or institutional law of an international organisation (e.g. European Union primary law)? If it is a customary norm, is it only emerging; or is it established, and have there been any persistent objectors that would affect its personal and territorial scope?19 (4) its content: i.e. does it protect only the entitlement to free and fair elections, or a thicker notion of democracy as well?20 Is that notion of democracy, whatever it is, sufficiently minimal to be universal?21 (5) its consequences:  i.e. does violating it constitute a ground for international intervention under Article 41 or 42 of the UN Charter22 (e.g. through sanctions, peace enforcement missions, election-monitoring missions or even military interventions) for the

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See e.g. I. Brownlie, Principles of Public International Law, 4th ed., (Oxford: Clarendon Press, 1990). See e.g. M. Koskenniemi, ‘Legal Cosmopolitanism: Tom Franck’s Messianic World’ (2003) 35 New York University Journal of International Law and Politics 471. See e.g. I. Wuerth, ‘International Law in the Post-Human Rights Era’ (2017) 96 Texas Law Review 279. See Marks, ‘What has Become of the Emerging Right to Democratic Governance?’ See d’Aspremont, ‘The Rise and Fall of Democracy Governance’, 554, 564; Magen, ‘The Democratic Entitlement’. See d’Aspremont, ‘The Rise and Fall of Democracy Governance’, 565. See also M. Lister, ‘There Is No Human Right to Democracy: But May We Promote It Anyway?’ (2012) 48 Stanford Journal of International Law 257. See Petersen, ‘The Principle of Democratic Teleology’. See Steiner, ‘Political Participation as a Human Right’; Franck, ‘The Emerging Right to Democratic Governance’. See Ehm, Das völkerrechtliche Demokratiegebot. See Magen, ‘The Democratic Entitlement’. See d’Aspremont, ‘The Rise and Fall of Democracy Governance’, 553–554. See Marks, The Riddle of All Constitutions, pp. 50ff. See Marks, ‘What has Become of the Emerging Right to Democratic Governance?’; Charlesworth, ‘Is There A Human Right to Democracy?’ Charter of the United Nations, San Francisco, 26 June 1945, in force 24 October 1945, 15 UNCIO 335.

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non-recognition of either government or state, or for the suspension of membership rights to the organisation in question? In short, then, were one to ask current international lawyers about the novelty of the HR2D, and in particular whether there is such a (new) human right, the answer would be just as ambiguous today as it was thirty years ago. What is clear, however, is that there is a regime of international law currently in place, however thin and fragile, that protects the PoD as a customary international law principle bearing on states, whether that principle corresponds to an individual right or not and, especially, to a human right or not. By reference to its counterpart IHRL, that regime may be described as international democracy law (IDL).23 Like IHRL, it protects the basic principle of individual equality, that is another customary international law principle.24 Whereas IHRL protects individual equality as a public status (constituted of equal individual rights), IDL protects it as a public relation (of equal decision-making). The PoD in IDL may be considered sufficiently universal in its justification to the extent that it captures that minimally egalitarian understanding of democracy qua collective decision-making procedure that includes equally all those subjected to a decision.25 In circumstances of reasonable disagreement, being treated equally in the public decision-making process, i.e. democratically, is the only way to protect the international customary and hence universal principle of individual equality. Of course, because of its relationship to basic individual equality, and hence to the human rights that constitute that equality as our basic status,26 democracy also amounts to a central dimension of IHRL, just as human rights correspondingly constitute a central dimension of IDL.27 This is the case both as the value underpinning many civil and political human rights in IHRL whose protection is required in a democracy, like the right to political participation, the right to free and fair elections, freedom of association, freedom of speech or the right not to be discriminated against on the one hand, and in democracy’s other normative capacities in human rights reasoning in IHRL on the other. For instance, democracy plays a role in the justification of human rights restrictions, as a dimension of positive procedural or institutional human rights duties, and as a justification for the application of the principle of subsidiarity, to mention only a few of the pivotal functions of democracy in international human rights reasoning. However, neither of those two normative instantiations of democracy in IHRL, either to protect certain specific democratic interests such as human rights or to constrain other human rights, should be conflated with an actual HR2D.

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See e.g. F. Ehm and C. Walter (eds.), International Democracy Documents: A Compilation of Treaties and Other Instruments (Leiden: Brill 2015); G. H. Fox, ‘Democracy, Right to. International Protection’, in R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (New York: Oxford University Press, 2013), Vol. III, p. 15. See J. Crawford, ‘Chance, Order, Change: The Course of International Law’, (2013) 365 Collected Courses of The Hague Academy of International Law 9 at paras. 487 et seq. with reference to ICJ, Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment, 5 February 1970, ICJ Reports 1970, p. 3, para. 34. See T. Christiano, ‘Self-Determination and the Human Right to Democracy’, in R. Cruft, M. Liao, and M. Renzo (eds.), Philosophical Foundations of Human Rights (Oxford: Oxford University Press, 2015), p. 461. See S. Besson, ‘The Egalitarian Dimension of Human Rights’ (2013) 136 Archiv für Sozial- und Rechtsphilosophie 19. See S. Besson, ‘Human Rights and Democracy in a Global Context – Decoupling and Recoupling’ (2011) 4 Ethics and Global Politics 19.

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37.3 Surveying the Philosophical Discussions of the HR2D During the late 1990s moral and political philosophers, and human rights theorists in particular, started discussing the international PoD as well.28 That debate arose later than discussions among international lawyers and was prompted by the publication of John Rawls’ The Law of Peoples.29 Contrary to legal debates, however, it has not weakened since 2010; quite the contrary. Unlike legal debates in IDL, philosophical discussions of the international PoD have focused mostly on the HR2D. Besides the connected albeit distinct issues of the co-original relationship between human rights and democracy,30 or of Arendt’s ‘right to have rights’,31 those debates have revolved around three central questions: (1) the nature of the HR2D, and in particular whether it is a human right and why;32 (2) the justification of the HR2D, whether it is instrumental (e.g. to peace, justice or economic prosperity)33 or inherent (e.g. related to dignity34, equality35 or other moral values); and (3) various critiques, such as the difficulty of justifying the (alleged) implications of the HR2D in terms of military enforcement and intervention,36 its questionable universality in light of the thick notion of equality it (allegedly) relies on,37 and its compatibility with the principle of self-determination (of non-democratic states).38 Curiously, the respective discussions of the HR2D by lawyers and philosophers have rarely come into contact with one another.39 Human rights theorists usually start their discussions with a short reference to the equivocal state of the HR2D in international law and merely refer, in an (unintentionally) formalistic but (truly) deceptive way, given what I have said earlier, either to written guarantees of civil and political rights in IHRL, as if they did amount to the HR2D itself, or to the lack of a HR2D therein.40 International lawyers, by contrast, mostly rely on one or

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Again, this is at least true in English, German and French scholarship, and in the Anglo-American and European continental philosophical tradition. J. Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999). See e.g. C. C. Gould, Globalizing Democracy and Human Rights (Cambridge: Cambridge University Press, 2004). See e.g. F. I. Michelman, ‘Parsing a “Right to Have Rights” ’ (1996) 3 Constellations 200. See D. A. Reidy, ‘On the Human Right to Democracy: Searching for Sense without Stilts’ (2012) 43 Journal of Social Philosophy 177; Lister, ‘There Is No Human Right to Democracy’. See T. Christiano, ‘An Instrumental Argument for a Human Right to Democracy’ (2011) 39 Philosophy and Public Affairs 142. See P. Gilabert, ‘The Human Right to Democracy and the Pursuit of Global Justice’, in T. Brooks (ed.), The Oxford Handbook of Global Justice (Oxford: Oxford University Press, forthcoming). See T. Christiano, ‘An Egalitarian Argument for a Human Right to Democracy’, in C. Holder and D. Reidy (eds.), Human Rights: The Hard Questions (Cambridge: Cambridge University Press, 2013). See C. R. Beitz, ‘Democracy and Human Rights’ (2007) 7 Human Rights & Human Welfare 100; S. Benhabib, ‘Is There A  Human Right to Democracy? Beyond Interventionism and Indifference’, in C. Corradetti et  al. (eds.), Philosophical Dimensions of Human Rights: Some Contemporary Views (Dordrecht: Springer, 2012). See J. Cohen, ‘Is There a Human Right to Democracy?’, in C. Sypnowich (ed.), The Egalitarian Conscience: Essays in Honour of G. A. Cohen (Oxford: Oxford University, Press, 2006). See Reidy, ‘On the Human Right to Democracy’. See also F. Peter, ‘A Human Right to Democracy?’, in R. Cruft, S. M. Liao and M. Renzo (eds.), Philosophical Foundations of Human Rights (Oxford: Oxford University Press, 2015); D. Miller, ‘Is There A Human Right to Democracy?’, in R. Celikates et al. (eds.), Transformation of Democracy: Crisis, Protest and Legitimation (London and New York: Rowman and Littlefield International, 2015). See, however, S. Besson, ‘The Human Right to Democracy: A Moral Defence, with a Legal Nuance’, in Council of Europe, Definition and Development of Human Rights and Popular Sovereignty in Europe, Science and Technique of Democracy No. 49 (Strasbourg:  Editions du Conseil de l’Europe, 2011); Lister, ‘There Is No Human Right to Democracy’. See e.g. C. C. Gould, ‘The Human Right to Democracy and Its Global Import’, in C. Holder and D. Reidy (eds.), Human Rights: The Hard Questions (Cambridge: Cambridge University Press, 2013); Reidy, ‘On the Human Right to Democracy’.

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other of the conceptions of democracy in democratic theory, without paying much attention to the debates animating political theorists about the many potential conceptions and justifications of democracy, but also, quite surprisingly, without much concern for the discussions about the nature and justification of human rights.

37.4 Relating Discussions about Legal Authority of the HR2D to Its Moral Justifications If we are to account morally for the equivocal state of the legal practice pertaining to the international PoD, the legal and philosophical conversations should meet. This does not only imply looking deeper into the correct interpretation of the legal concept of democracy, as Boysen does very aptly in her chapter,41 but also at addressing the potential moral justification of the HR2D qua human right in itself and at explaining how it could relate to current international law. Importantly, while such a moral justification of IDL and IHRL would be ‘nice to have’, the proposed argument is distinct in its endeavour and should not be conflated with a philosopherking argument. Resorting to human rights theory and to the advice of philosophers when identifying new human rights was something that was actually tried in 1947 with the creation of the UNESCO Human Rights Committee. It was quickly abandoned thereafter, and rightly so.42 Identifying new international human rights, but also, generally, ascertaining the existence or validity of a right under international law, is a matter of sources of law and not of moral justification. One should identify the procedures and institutions that make international (human rights) law rather than derive them from human rights morality. True, once the existence of a human right is established as a valid norm under international law, its moral justification may eventually matter for its legitimacy or legitimate authority, to the extent that the grounds for the justification of the authority of a given legal right qua right are moral. So even if the grounds for the legitimate authority of a potential human right to democracy under international law are content-independent and should not be conflated with its moral justification as a moral human right, the latter can contribute to the former in order for the legitimate authority it claims for itself to match the reasons we have independently from the law (so-called ‘dependence thesis’).43 Of course, not all universal moral rights necessarily translate into legal human rights, and not all existing legal human rights existed previously as universal moral rights, and merely amount to moral principles or goals. What is clear, however, is that for legal human rights to give rise not merely to legal duties but also to moral ones, and hence to bind as rights stricto sensu, they should correspond to universal moral rights and should therefore, at least, contribute to creating them (as universal conventional moral rights) when they do not merely recognise or specify them (as universal natural moral rights).44 In short, then, elucidating the legitimate authority, as opposed to the validity, of the HR2D under international law becomes, at least in part, a matter of either inherent or instrumental justification of a corresponding universal moral right. Of course, there could be other instrumental moral justifications for the authority of an international HR2D qua legal norm, but none of

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them can account for the legitimate authority of the HR2D qua moral and legal right, and this is what I take the claim about the existence of the HR2D to be about.

37.5 Accounting Morally for the Equivocal Legal Practice around the HR2D Because current international law is equivocal about the existence of a HR2D in practice, it is that ambiguity that one should account for morally. In a nutshell, my argument is that there can and should be no universal moral human right to democracy and hence no legitimate HR2D in international law, even if such a human right were to be validated legally (and even if it were to be justified on other instrumental moral grounds).45 As mentioned before, human rights and democracy are normative implications of the basic principle of individual equality. Both human rights and democracy are needed to protect individual equality, and neither of them should take priority over the other, nor be grounded in the other, as a result. If this conception of the relationship between equality and democracy on the one hand, and human rights on the other, is correct, there can and should be no ultimately legitimate democratic decision about the justification of human rights and no ultimately legitimate human right to democracy. We should not make the mistake of either ‘over-proceduralising’ democracy at the expense of human rights protection or of ‘over-essentialising’ human rights at the expense of respecting democracy. In turn, this explains why there cannot and, as a result, should not be a human right to democracy itself qua value, but only human rights for the protection of certain political interests, whose protection as human rights can contribute to the protection of equality and hence of democracy as values.46 What this means for international law is that, were a HR2D created and validated in IHRL and IDL, that right could and should not be justified as a human right in a moral sense, whether as a natural right or a conventional one, and could not be regarded as having legitimate authority. What could and should be protected in international law, however – and this is actually the case already – is the principle of individual equality, and also the corresponding principle of democracy in IDL and specific individual rights to democratic participation in IHRL. Of course, one may in turn derive from the principle of individual equality both a moral right to have human rights and a matching moral right to have a democracy. This corresponds to a potential interpretation of Arendt’s moral right to have political human rights.47 However, for fear of circularity, this moral right to have human rights and democracy under a given political and legal order cannot and should not be protected as a justified moral and legal human right in itself in that order. This may explain, as alluded to before, why some authors merely refer to the HR2D as an individual ‘entitlement’ in IDL or, worse, to an imperfect and non-directed positive duty of states under IHRL.

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For a full argument, see Besson, ‘The Human Right to Democracy’. To the extent that the HR2D fails to convince on grounds of moral logic and of the relationship between human rights, democracy and basic moral equality on the one hand, and of the relationship between moral and legal human rights on the other, one does not need to consider whether the structural elements of a human right are given. I have argued elsewhere that they are not:  Besson, ‘The Human Right to Democracy’. On the latter (which differ from those proposed by Alston, ‘Conjuring Up New Human Rights’), see S. Besson, ‘La structure et la nature de droits de l’homme’, in M. Hottelier and M. Hertig (eds.), Introduction aux droits de l’homme (Brussels: Bruylant, 2014). See also S. Besson, ‘The Right to Have Rights: From Human Rights to Citizens’ Rights and Back’, in M. Goldoni and C. McCorkindale (eds.), Hannah Arendt and the Law (Oxford: Hart Publishing, 2012).

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The proposed interpretation fits and justifies the state of the practice in international law. It accounts morally for the current regime of IDL and for the fact that democracy is protected both as a general principle in international law on the one hand, and as a set of specific or derived human rights under IHRL on the other, but not as a human right in itself. At this stage, two objections may be raised. First of all, as Boysen does in her chapter,48 it may be asserted that even the proposed moral and international legal PoD would contradict the allegedly competing principle of self-determination, both morally and in international law.49 Following Thomas Christiano, the reply may be that the principle of self-determination is best understood as being derived from the international PoD50 – rather than the other way around, as most promoters and challengers of the HR2D argue. In order to protect individual equality in public decision-making, that process should be democratic and, for this to be the case, political communities should be able to determine themselves autonomously. Of course, just as any moral right includes the right not to be used or to be misused, self-determination may either not be used or be used non-democratically, even though it derives from the protection of democracy itself. The only moral limit to its not being used or being misused, as with any human right, is the protection of individual equality. This interpretation of the international principle of self-determination accounts well for the practice of IDL where fascism and apartheid, and other forms of authoritarianism, belong to the political regimes prohibited by international law precisely because they threaten individual equality itself.51 A second objection made by Boysen52 and others against the international PoD pertains to the erosion of the democratic practice of states worldwide and, to the extent that the democratic principle amounts to an international customary norm, to the threat that erosion poses for it and its claimed universality. The evidence authors usually put forward are the rise of authoritarian governments,53 but also global individualism and the corresponding disaffection of domestic, including democratic, politics. While the observation may well be correct empirically and in terms of customary international law-making, one may doubt the generality of this erosion process. For the customary international PoD to erode, the generality and regularity of state practice of disrespecting individual equality in public decision-making would have to be established, and we have not reached that stage yet. Moreover, the argument’s normative implications are problematic. There is no better alternative for securing political legitimacy, domestically and internationally, than the preservation of democratic states, at least for now. First, democracy amounts to the ground of political legitimacy that best protects the universal principle of individual equality in circumstances of reasonable disagreement about the law. And, second, democratic legitimacy requires a state, or at least features like jurisdiction over a permanent population and a territory in particular, that only states have been able to secure so far. This is because it is only by sharing the same territory

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Boysen, in this volume, pp. 473ff. See also Cohen, ‘Is There a Human Right to Democracy?’; Reidy, ‘On the Human Right to Democracy’; d’Aspremont, ‘The Rise and Fall of Democracy Governance’, 556. Christiano, ‘Self-Determination and the Human Right to Democracy’, 476–479. See e.g. International Convention on the Suppression and Punishment of the Crime of Apartheid, New York, 30 November 1973, in force 18 July 1976, 1015 UNTS 243; International Convention on the Elimination of All Forms of Racial Discrimination, New York, 21 December 1965, in force 4 January 1969, 660 UNTS 195, Art. 3. Boysen, in this volume, p. 466. See d’Aspremont, ‘The Rise and Fall of Democracy Governance’; Marks, ‘What Has Become of the Emerging Right to Democratic Governance?’

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with others that we can share sufficiently equal and interdependent stakes with them and hence fulfil the conditions for the justification of democracy as a political regime.54 As I explained before, IDL and IHRL entrench two complementary normative instantiations of the principle of individual equality, i.e. democracy and human rights. Their role is therefore to enforce the pre-commitment of states to individual equality from the outside and through international law, especially when domestic politics are under strain. However parochial its historical origins, this minimal international egalitarian pre-commitment against the vagaries of politics is one of the most important legacies of our post-1945 international legal order. And one we should not let go too easily in the name of political realism, anti-imperialist conscience or post-colonialist qualms.

37.6 Conclusion In sum, even though Boysen and I differ partly in our analysis of IDL and the HR2D – to the extent that she focuses on the thickness of the concept of democracy,55 whereas I have concentrated on the moral justification of an actual human right to it – we agree in our conclusions: first, about the absence of a HR2D in current international law and, second, about its lack of moral justification. As should have become clear, however, I disagree, for egalitarian reasons, with Boysen’s rejection of the universality of the PoD,56 first, and with her justification of non-democratic forms of self-determination,57 second. As I have argued, there is, under current international law, not only a customary principle of individual equality, but also of democracy, and those two principles may be considered both as morally justifiable and potentially universally legitimate. Those are the principles that we, international lawyers, should now urgently be tending to and aim at justifying through comparison and negotiation across legal cultures, albeit outside IHRL and beyond the obsolete and largely sterile discussion of the existence, emergence or erosion of the HR2D.

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See T. Christiano, ‘Democratic Legitimacy and International Institutions’, in S. Besson and J. Tasioulas (eds.), The Philosophy of International Law (Oxford: Oxford University Press, 2010). Boysen, in this volume, pp. 475–479. Ibid., pp. 473–475. Ibid., pp. 476–479.

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38 A Right to Administrative Justice ‘New’ or Just Repackaging the Old? Hugh Corder

38.1 Context With the fall of the Berlin Wall in November 1989, and the simultaneous final shifts to the decolonisation of southern Africa with the independence of Namibia and South Africa’s progress towards freedom, an unprecedented era of constitution-making was launched. This activity focused on central and eastern Europe and western continental Asia as the Soviet empire was dismantled, and on the Namibian and South African ‘revolutions’ in formal governance structures, although this development soon gained traction widely in other states in southern and east Africa. It was as if the final steps in freeing the African continent from imperial rule with the overthrow of apartheid triggered the desire to ‘renew the vows’ under which formal freedom had been granted through constitutional arrangements imposed from London and Paris some thirty to forty years earlier. This period allowed for much learning from established constitutional systems, as well as for constitutional lawyers and political parties to develop new ways and structures of governance, often imaginatively informed by advances in socio-political thought in the last quarter of the twentieth century. An important part of this creative agenda was the formulation of entrenched socio-economic rights in the constitution, and South Africa led the way in this regard.1 Amid a degree of controversy about the wisdom of their inclusion2 and deep scepticism from expert opinion in the developed world,3 such rights were crafted in a manner which sought sensitively to balance the desperate needs of those whose lives depended on the provision by the state of basic goods and services with the competing priorities of a government with limited financial resources. The essence of this attempt at the constitutional accommodation of socio-economic interests as ‘rights’ effectively led to their inclusion using a formula which qualified the grant, making it subject to terms such as ‘a right to have access to …’ the specific good or service. Similarly, the correlative duty on the state was imposed in a manner which allowed for ‘the progressive realisation’ of each such right, provided that the state had satisfied the obligation to ‘take reasonable legislative and other measures, within its available resources’ to achieve that goal.4 I emphasise 1 2 3 4

See the 1996 Constitution of the Republic of South Africa, ss.26 to 29. See, for example, the focus section in (1992) 8 South African Journal on Human Rights, at 451. See, C. Sunstein, ‘Social and Economic Rights – Lessons from South Africa’ (2000/2001) 11 Forum Constitutionnel 123. See the text of s.26, the right to housing. So we read (my emphasis placed on the qualifications on the right) that: ‘(1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right’.

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this point for three main reasons: first, because the inevitable outcome of such a formulation is to make the courts the final arbiter of the ‘reasonableness’ of any such measures taken by the state, which thrusts the judiciary into the realm of adjudicating the constitutionality of public policy in the socio-economic sphere, which then raises questions about the separation of powers, and I comment on this below. The second reason is because of the intimate relationship which exists between this right and the realisation of the idea of a ‘participative democracy’, which lies at the heart of most of the latest round of constitutional design in which I am situating its development. But third, and perhaps most importantly for the purposes of this project, any discussion about ‘new human rights’ must confront primary definitional questions about what is to be regarded as ‘new’ and what constitutes a ‘right’. Starting with the latter question, I  contend that developments since the 1990s have led, appropriately, to an erosion of the idea of ‘rights as trumps’, the concept argued so brilliantly by Ronald Dworkin.5 While this idea may still be entirely relevant and applicable to the first generation of (blue) rights in the civil-political sphere, the general field of ‘rights talk’ is now much more fluid and flexible in order precisely to allow for second-generation rights, the ‘red rights’ in the socio-economic order,6 so that we begin to see ‘rights’ not as one-dimensional but as situated on a spectrum when it comes to correlative obligations and enforceability. I would argue that these remain rights, nevertheless, but that there is merely a difference in the manner in which they can be enforced, and in the expectation of the degree of state obligation. And, in anticipation of what is to follow in this chapter, I would argue that another type of right, which for want of a better label could be called a fair process or enforcement right, has emerged at centre stage, which falls on the spectrum between the first and second generations of rights: indeed, this cluster of rights undergirds the grant of all other rights, and so could be seen to be situated pervasively on the spectrum, or at least between the first two generations of rights – the positioning will depend on whether they are regarded as ‘new’ or a restatement of the enduring ‘old’. This leads directly to the need to explain my approach to what is ‘new’. This is one of the key elements of this project, so that it is vital that one’s approach to the idea of ‘newness’ or ‘novelty’ is spelled out in advance. I contend that the quality of being ‘new’ is signified or symbolised by similar factors to those mentioned above: in this context, a raising of prominence or level of entrenchment as regards enforceability of the legally recognised interest concerned. It is highly unlikely that an interest recognised by law will be accorded the elevated status of ‘right’ (as in ‘human right’) entirely unexpectedly, as if from the ether. It is far more probable that ‘new human rights’ develop either in concord with the socio-economic advancement of humanity, as an aspirational expression of the ideals advanced by contemporary notions of ‘social justice’, or that existing interests, processes, technologies or practices develop in such a manner that a constitutional or legal system deems it necessary to elevate them to the status of ‘right’. In either sense, I would argue that they qualify as ‘new’. So as examples of the former group, the right to shelter and basic medical care spring to mind; while in the latter group certain procedures become so essential for the achievement of the fair and equitable distribution of socio-economic goods and services that they are accorded the status of a ‘right’, such as the ‘right’ to access the Internet or the right to good administration, or the right of access to information. In all these 5 6

In his magisterial work, R. Dworkin, Taking Rights Seriously (London: Duckworth, 1978). Not to mention the ‘third generation’ rights, those to development and an environment which is not harmful to health.

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instances there will be antecedent and more traditional rights, such as the right to property (corporeal and intellectual) and to equality of treatment. The pre-existence of such foundational rights matters not, in my view: so long as the ‘new human rights’ are accorded at least similar prominence and enforceability, they qualify both as ‘new’ and as ‘rights’. Does it make a difference whether such ‘new’ human rights are deemed important enough to be included as constitutional guarantees? Or put differently, is every constitutional right by virtue of its constitutional status a human right? I would argue that human rights can certainly exist outside the framework of a formal, written constitution, as witnessed by the entire spectrum of deeply respected, indeed inalienable rights which underlie the very foundations of the English common law. There would be similar occurrences in other legal systems, just as there would be constitutional rights which might not be generally regarded as human rights as such. I would argue that most (if not all) rights included in a constitutional bill of rights, even if procedural in nature, also qualify as human rights, by virtue at least of the close connection which exists between them and the more substantive human rights. To take just one example: if the specific rules relating to standing to sue are so restrictive that very few legal subjects are able to apply for and be awarded the right to freedom of movement, the latter right is effectively rendered nugatory and is denied its protected status. Thus, although the legal rules determining locus standi in judicio are not usually included in more established bills of rights, their inclusion in, for example, the South African bill7 was deemed essential precisely to signal a break with the injustice of the past, as well as to radically widen the enforceability of the rights to those who needed them most. In fact, this opens up another aspect of ‘rights-talk’ as used in developing the idea of ‘constitutionalism’ since the mid-1990s:  that of using constitutional language not only to express things as they are, but also to signal the need to change, to redistribute authority and power, and to make such changes in structure enforceable on the ground, where it matters most. This stresses an aspirational nature to the idea of rights, very far from the trump which Dworkin proposed. Indeed, it seems to me that this observation is not confined to these last decades: the constitutions of France and the United States similarly expressed the revolutionary ideas and the desire for radical socio-economic change of their authors, albeit in a different era. And it is precisely because of the relative failure, over the course of 200 or more years, of such constitutional systems to lead to more substantial socio-economic redistribution of power that those making constitutions more recently have resorted to the device of constitutionalising human rights which have hitherto only been statutory or common law in status, in the hope that this will enhance the realisation of such rights in fact. To illustrate the latter development less generally and as the basis for what follows in this chapter, I return to the processes of constitution-making after 1990, and particularly in southern Africa. In addition to expansion into the socio-economic sphere, heightened attention was given to what can broadly be termed ‘due process’ or ‘procedural fairness’ beyond the narrow use of those terms. This was done to address rising concerns about the necessity for the ‘lawful regulation of the exercise of public power and the performance of public functions’,8 largely by the executive branch of government, together with its bureaucratic support structure. As such (mostly) discretionary authority, usually founded in statute, had grown universally and apace 7 8

See the 1996 Constitution of the Republic of South Africa, s.38 on enforcement of rights. This is the phrase used in South African law to encompass the wide range of ‘administrative and executive conduct’ which ought to be subjected to lawful regulation. Other legal systems use different phrases, such as ‘gate-keeping devices’, to demarcate the proper limits of the jurisdiction of a reviewing authority. In what follows, I will generally use the phrase ‘exercise of public power’ to signify this field of application of a reviewing authority.

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over the last half of the 1900s, in order to deal with natural and man-made disaster, armed conflict, epidemics and the socio-economic expectations of a burgeoning and rapidly urbanising population, so was it necessary to ensure a degree of ‘fundamental fairness’ in the decisionmaking processes necessarily involved. The lateness of the arrival of constitutional renewal in central Europe and southern Africa worked in favour of the acceptability of such ideas as fundamental constitutional prescripts. Traditionally, this is the homeland of administrative law, and more specifically the review of, or an appeal from, administrative action in the common law world and their equivalents in the civil law spheres of influence. Fair process rights have existed from time immemorial, in the form of the ‘rules of natural justice’, typically being defined as the right to a hearing and to a decision that is not biased. In this sense at least such concerns are not new, and can be seen almost as preconditions for the enforcement of any legal right, but their newness stems from their elevated prominence as necessary and enforceable. Changed conditions and the opportunity for a renewal of the idea of democratic constitutionalism therefore presented the ideal moment to elevate the general principles of administrative review and the attendant legal rights to constitutional status, in order to better ensure the equitable distribution of socio-economic goods and services, and the transparent, responsive and accountable exercise of public power.9 And in an era when governments were resorting to the medium of ‘privatisation’ to perform their functions,10 it became increasingly important to subject such ‘private’ exercisers of public power to some form of public monitoring and regulation. Thus was the ‘right to administrative justice’ born in the Namibian Constitution of 1990. ‘Administrative justice’ in this context encompasses the notions both of empowerment through authorisation of the body which exercises public power and of its accountability through the law. In the past, this has been typically secured through statute or the common law, including judicial determinations of rights and duties, and in some systems through a sophisticated and diverse range of administrative tribunals and allied bodies. From the 1950s, however, administrative justice has been increasingly associated with much more varied and expanded notions of regulation beyond courts, including the establishment and proper resourcing of systems of administrative appellate tribunals, ombuds-type bodies, human rights commissions, a public financial auditing authority, a right of access to information, and so on. The non-governmental sector, both nationally and internationally, as well as the free media, also play a critical complementary role in keeping government both honest and fair. All of these mechanisms together have the potential to provide a comprehensive framework for the achievement of both administrative justice and a stepping stone to the achievement of a responsive democratic order. I would argue, too, that this form of democracy has become the appropriate benchmark for both old and new order democratic regimes, as will be seen below. The comments and analysis which follow are chiefly relevant to ‘common-law’ systems based on that of the United Kingdom (the whole of the Commonwealth), and to some extent the USA, although the latter took its own direction with the passage of the Administrative Procedure Act of 1946 at federal level, and the equivalent enactments at state level. The scope of this chapter does not permit the type of analysis which would do justice to similar developments in civil law systems, particularly in Europe, and this aspect received considerable attention at the

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These are, in my argument, the main areas in which any fair process rights apply, subject to further explication below. This general trend in government practices in most nation states was of course initiated by the Thatcher/Reagan axis from 1980 and accelerated with the growth of ‘globalism’ in the financial and economic spheres from the early 1990s. The ‘global financial crisis’ of 2008 has put a brake on such developments, although has not stopped them altogether.

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second gathering of this project group at the conference in Tallinn in 2017 on Rights for the 21st Century? Exploring the Need for ‘New’ Human Rights.

38.2 The Democratic Necessity of Administrative Justice The achievement of a reasonable level of compliance with the requirements of administrative justice (which can be encapsulated in the phrase ‘accountability, responsiveness and openness’, which are the concluding values in section 1(d) of the South African Constitution of 1996) has, since the 1990s, come to be seen as an indispensable part of any constitutional democracy. In particular, the role which administrative honesty, fairness and efficiency can play in the protection and enforcement of human/constitutional rights is increasingly recognised, as the notion of ‘democracy’ advances from a majoritarian representative model to a participative and responsive model. The type of democracy enshrined in modern constitutions is frequently ‘participative’ in character, emphasising the necessity for mechanisms for civic participation in governmental activity at every level on a continuous basis, not just by taking a ‘snapshot’ of electoral opinion every five years or so on the occasion of a general election.11 For example, the ‘notice and comment process’ required by administrative law as an expression of the right to a hearing, writ large, when an administrative decision (such as the widening of a public road) is likely to affect the rights not only of property owners immediately adjacent to that road, but more generally, goes some way towards meeting the participative aspect of democratic constitutionalism. Again, the obligation to provide reasons for official decisions provides a means of holding the exerciser of public power to account for a basic level of rationality in all circumstances: the formulation of such reasons forces the administrator to justify their actions, while it simultaneously gives the potential complainant a basis for their legal challenge, which would be much more difficult without such reasons. This (marginal) shifting of the balance of power expresses an acknowledgement of the gap between the wealthy and powerful and the poor and marginalised in every society, but perhaps more extremely in the developing world, and it enhances the enforceability of such rights. This is all the more necessary as, when the notion of protected rights advances to include the provision by the state of socio-economic benefits such as welfare payments, access to housing and the basic amenities of life, healthcare, and education, the honest, fair, transparent and equitable distribution of such social goods is absolutely critical. Access to such rights and benefits should not be confined to the chosen few nor to those well connected with one or other locus of authority or power (such as members of the dominant political party). Proper compliance with the requirements of administrative justice thus becomes an essential element of a participative democracy. The scourge of corruption of power which characterises so much of public governance in the world is undermined by notions of openness and accountability. But are the tried and trusted systems of the common and statute law not enough? Why is a ‘new’ constitutional/ human right necessary?

38.3 Constitutional Protections: Many Questions Posed Should such minimal entitlements be secured in a protected charter of rights within the national constitution? Views on the answer to this question naturally diverge and are often 11

E. Mureinik, ‘Reconsidering Review:  Participation and Accountability’ (1993) Acta Juridica 35, and D. M. Davis, ‘Administrative Justice in a Democratic South Africa’ (1993) Acta Juridica 21.

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directly influenced by the level of maturity and efficacy of the existing democracy-ensuring structures and channels in any national system. Ensuring some measure of administrative justice is increasingly becoming an important notion on the international plane, as globalism has taken root from the early 1990s, but this is not the focus of this chapter.12 Despite this limitation, it is important to note that the notion of ‘global administrative law’ encapsulates the essence of what is being argued here on the international plane. More precisely, the growing scholarship in this field is clearly concerned with the achievement of a related degree of procedural fairness as a prerequisite for valid administrative conduct at the supranational level.13 It is more difficult to describe such rights and duties as ‘human’ rights, because they are more frequently associated with the interests of nation states as members of international organisations, but from time to time individual citizens may well be regarded as proper legal subjects with claims/rights in the international arena. This is to be seen where individual citizens have the right to take national governments to international adjudicative forums. Many of these developments have been inspired by parallel shifts at the national level. A complicating factor internationally is more often than not the absence or lack of authority of a ‘sovereign’ power able to recognise its obligations and to make amends; nevertheless, this is a field in which developments may well happen in the future as the boundaries of nation states become more porous and the institutions of global governance become more influential. Returning to the national level, it can fairly be argued that, where a constitutional democratic regime is firmly founded in governmental practice at all levels of the exercise of public power in both form and substance, the necessity for entrenching a right to administrative justice in the bill of rights or elsewhere in the constitution is probably redundant. However, even in such systems the possibility of the erosion of historic practices exists, as we have begun to witness in parts of the developed world of late. And where the political system concerned is making the transition from dictatorial or harshly authoritarian rule towards democratic practices, this process can be strongly assisted by privileging the requirements of administrative justice in the constitution. Such an innovation draws abundant attention to its requirements and provides a foundation for the development of a range of good practice and substantive fairness which is needed where history and culture militate against such concepts. I would argue strongly that the elevation in status of what is a legal right and/or a bureaucratic practice to that of a constitutional right is not only proper in the sense of fitting neatly into a ‘spectrum-like’ approach to the concept of rights which seems to be growing in popularity, as explained above, but also in ‘aspirational’ or idealistic terms. In other words, by setting a standard to which all official conduct should aspire, there will be an educational effect on those who exercise public power, in the knowledge that any shortcomings in their conduct are susceptible to being held to account at the highest and most public level of judicial scrutiny. It is likely that any such recalibration of bureaucratic culture will take time to become grounded, but that it is nevertheless a worthy objective in pursuit of good governance. Regarding such rights as ‘human’ provides a significant boost to their constitutional ‘weight’ and respectful implementation. So it was that, from the beginning of the 1990s, as part of the wave of constitution-making that ensued from the final step in decolonisation and arrival of freedom at the foot of Africa 12

13

For a sample of thinking on this plane, see the 2009 volume of Acta Juridica, Global Administrative Law: Development and Innovation. See, for example, the seminal introductory article on this subject, B. Kingsbury, N. Krisch and R. B. Stewart, ‘The Emergence of Global Administrative Law’ (2005) 68 Law and Contemporary Problems 15, and the entire contents of 2009 Acta Juridica, but in particular D. Dyzenhaus, ‘Accountability and the Concept of Global Administrative Law’ (2009) Acta Juridica 3.

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(the independence of Namibia and the fall of the racist oligarchy in South Africa), a number of jurisdictions in that continent chose to include a right to administrative justice as part of their new or revised constitutions. Details of the provisions appear below, but each formulation of the protected right must endeavour to confront some underlying questions and threshold concepts which flow from the broader concerns set out above, such as: • How extensive should the right be? As with the terms of the protection of all rights in law, there must be a balance struck between aspiration on the one hand and achievable pragmatism on the other. This is a consideration which is perhaps of greater concern with ‘new’ rights in respect of which the correlative duties need development in governmental practice. • Should the human right (to administrative justice) expressly impose duties on bodies and officials? This means that the initial burden of proof in any litigation rests on the administration to satisfy a reviewing body that it had acted fairly, reasonably and lawfully. • Some legal ‘label’ must be found in any system to define the type of administrative conduct which is amenable to the review jurisdiction of the courts, almost as a gatekeeping device, such as my use above of the ‘exercise of public power’. Other words, such as ‘public’, ‘official’, ‘executive’ and ‘administrative’ are key terms which must be defined – this is a necessity in any system of administrative justice, accepting simultaneously that their interpretation by the relevant judicial authority will be needed, as rigid definitions are unlikely to be of much assistance. • Furthermore, is it necessary to limit access to review to those who have been affected by administrative action beyond a certain minimal limit? If so, how? The trend of late has been to widen access to justice, to allow suits both on behalf of those who for whatever reason were unable themselves to approach the court or those seeking to further the public interest. • How are acts done by the executive branch of government which are not ‘administrative’ to be regulated according to law? This inevitably trespasses on the separation of powers: how far should the judiciary go in examining the lawfulness and rationality (at least) of the exercise of authority by a member of the executive? This aspect of the ‘checking and balancing’ function of the three branches of government must be characterised by an appropriate theory of ‘due deference’ – not as submission, but with respect.14 • In drawing distinctions between different types of administrative conduct as regards their validity, should some requirements be more stringent than others? In other words, are there types of administrative conduct which should be subjected to a stricter degree of scrutiny than other types? • To what extent should the general categories of the grounds of review typically known to most legal systems, such as lawfulness, procedural fairness and reasonableness, be specified? • Lawfulness (compliance with the rule of law/principle of legality) is the primary basis for valid administration: it must also at the very least imply consistency with the constitution. Under this broad umbrella the South African judiciary has placed limits on ostensibly discretion-laden ‘executive’ conduct, based on the concept of rationality – and to a limited

14

See D. Dyzenhaus, ‘The Politics of Deference: Judicial Review and Democracy’, in M. Taggart (ed.), The Province of Administrative Law (Oxford: Hart Publishing, 1997).

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•

•

•

•

•

extent, as part of rationality, compliance with procedural fairness, including the giving of reasons for such conduct. The difference between the concepts of ‘fairness’ and ‘reasonableness’ needs to be defined. In particular, does the former term extend beyond the formal aspect, to the substance of the decision-making process, and if so, is this not a more exacting standard than ‘reasonableness’ as a ground of review? Is the duty to give reasons for any administrative conduct an essential element of this right? And related to this duty, does one permit review for the ‘reasonableness’15 of an action as well as its ‘rationality’? What about access to the information available to the administrator when the decision was made? Here arguments relating to confidentiality may be raised by the public administration, but many legal systems are increasingly widening the necessity of providing the documentation directly relevant to the exercise of discretion. What forums are ‘competent’ to hear an application for review of or an appeal from an administrator’s conduct? The jurisdiction finally to be seized of a review matter must remain with a superior level court of law, but the various drawbacks of judicial review16 are best avoided from the outset in favour of an expeditious, informal, fair and equitable process, such as the office of ombudsman or a dedicated and independent appeals tribunal with either a general or specialised jurisdiction.17 What remedies should be available to be granted to those who successfully challenge the lawfulness of administrative conduct? It seems that the notion that courts ought to be able to order a ‘just and equitable’ remedy will be appropriate, provided that the judiciary retains an appropriately deferential stance.

These questions serve to identify the minimum content of any necessary regulation of the state of administrative justice, without providing too many definitive answers as to whether such regulation should be constitutional or statutory in nature, or a combination of the two. The highlevel review of the issues set out in this section identifies concepts and scope which need in some manner to be identified and responded to in any human right of administrative justice. In considering answers to these vexed questions, useful contributions may be found in those legal systems which have actually recognised such a human right.

38.4 Comparative Borrowing In any process of analytical review in order to learn from the experience of other systems, it is wise not to attempt to reinvent the wheel, while always recognising that wholesale transplantation from one legal system to another is rarely successful. It is generally accepted that there are essentially two major ‘families’ of administrative law in the world, that based on the English common law (and to be seen particularly in the countries of the Commonwealth, and to a much 15

16 17

The terms ‘rationality’ and ‘reasonableness’ are often used interchangeably in law. South African judicial authority draws what I argue is a useful distinction, especially when executive conduct is subjected to review, in that ‘rationality’ connotes the bare minimum compliance with formal logic and minimal evidential support for a decision, while ‘reasonableness’ adds in the notion of the ‘proportionality of the impact’. See C. Hoexter, ‘The Future of South African Administrative Law’ (2000) 117 South African Law Journal 484 at 494. Within the Commonwealth, Australia pioneered the idea of a complete overhaul of the administrative review processes and institutions, through deliberate enquiry and consequential statutory reform in the early to mid-1970s. Canada followed suit on the inquiry front in the early 1980s, but concluded that a wholesale overhaul was less necessary. See H. Corder, Empowerment and Accountability: Towards Administrative Justice in a Future South Africa (London and Cape Town: SA Constitution Studies Centre, 1991).

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lesser and more distant extent in the United States of America) and that based on the civil law systems of continental western Europe, which in itself tends to be divided between those based on the French model and those based on the German model. I would envisage that the chapters within this volume will enable substantive input from particularly the latter ‘family’ of administrative law, characterised both by the national systems of administrative law and also regional (EU) principles, regulatory provisions and practices. I set out below the relevant provisions in which African constitutions of the since the 1990s have attempted to capture the essence of the rights to administrative justice. In focusing on Africa, the observer may wonder why the initial invocation of this right proved to have fallen on such fertile ground that it was replicated within at least six national constitutions over a short period of time, as is reflected below. The answer lies in a combination of the following factors, in my experience. First, the fact that all of these systems fall within the Commonwealth legal family, so sharing a common ancestry, made the transplantation relatively smooth. Second, the apparent ineffectiveness of the existing provisions at common law in each of these countries, and the urgent need to address socio-economic deprivation and a widening wealth gap, made the adoption of the right politically uncontroversial. Third, the bitter experiences under apartheid of those lawyers who drafted the Namibian Constitution18 had taught them the value and potential of effective administrative justice safeguards in protecting the vulnerable against the autocratic exercise of power, and that the strengthening of such rights would go far in securing hard-won democratic values. Fourth, the advent of democracy in South Africa coincided with strong popular movements towards democratic reforms in many African countries, whose immediate post-colonial constitutions had proved woefully inadequate to the needs of their societies. Finally, the relatively small cohort of constitutional scholars who were active in writing the South African constitution were frequently called on elsewhere in Africa and internationally to play an ‘expert adviser’ role, based on the thoroughly positive image generated by the constitutional transition in that country. As regards the right to administrative justice, Namibia (1990) led the way in constitutionalising the obligations of administrative officials and bodies, albeit in a largely negative way, primarily by imposing duties on those who wield public authority, but also by confirmation of the right of complainants to seek review, as follows: Section 18 Administrative Justice Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent court or tribunal.

South Africa followed suit within three years.19 As is well known, there was a two-stage constitutional basis for the transition of political authority from the apartheid regime to the legislature elected in the first free election based on universal adult suffrage in April 1994. Importantly, the ‘transitional constitution’ of 1993 already contained a right to administrative justice.20 This was a rather complex set of rights which reflected not the unanimity with which the necessity to 18

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They were: Arthur Chaskalson, later to become the first president of the Constitutional Court; Ismail Mahomed, the first black Chief Justice; and Marinus Wiechers, the doyen of administrative law scholarship at that point, all from South Africa. For a contemporary summary of this process, see H. Corder, ‘Reviewing Review: Much Achieved, Much More to Do’, in H. Corder and L. van de Vijver (eds.), Realising Administrative Justice (Cape Town: Siber Ink, 2002). See the 1993 Constitution of the Republic of South Africa, s.24 on administrative justice.

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include such a right was embraced by the political negotiators, but the suspicion with which the main contenders for post-apartheid political power regarded each other, and their determination not to allow their opponents to gain the upper hand through too general a set of formulations of this right. By the time that the final constitution was drafted, the disposition of political power had been clearly established, and the general pursuit of the use of ‘plain language’ in the constitution led to the following much simplified version of this right in the Constitution of 1996: Section 33 Just Administrative Action

(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. (2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons. (3) National legislation must be enacted to give effect to these rights and must – (a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal; (b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and (c) promote an efficient administration. Malawi rewrote its constitution in the course of 1994, clearly influenced by the transitional South African experience, and Uganda adopted a much simplified and unitary provision the following year: Section 42 Right to just and fair treatment in administrative decisions Any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her.

In 1999 Nigeria became the first country outside the southern and east African regions to innovate its constitutional provisions in this respect, but in a very much more expansive manner, as follows: Section 36 Right to a Fair Hearing

(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. (2) […] (3) The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section … shall be held in public. [The rest of this section sets out the rights of those accused in a criminal trial.]

Kenya’s ambitious and thorough-going process to rewrite its constitution resulted in 2010 in the following progressive provisions, in that it builds on what has been adopted before, but pushes hard at the boundaries of what constitutes good administration: Section 70 Fair Administrative Action

(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

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(2) Every person whose right or fundamental freedom has been or is likely to be adversely affected by administrative action has the right to be given written reasons for that action. (3) Parliament shall enact legislation to give effect to the rights in clause (1) and such legislation shall (a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal; and (b) promote efficient administration. The inclusion of the review grounds of expedition and efficiency prospectively and ambitiously sets new benchmarks for measuring administrative justice, and the wisdom of their inclusion has yet to be assessed. Finally in the African sphere, and surprisingly given the generally hostile approach of the Mugabe regime to fundamental fairness in governance, the process of indigenising the Westminster Constitution imposed on Zimbabwe at independence in 1980 produced the following formulation in 2013, which bears close resemblance to that of Kenya: Section 68 Right to Administrative Justice

(1) Every person has the right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair. (2) Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct. (3) An Act of Parliament must give effect to these rights, and must (a) provide for the review of administrative conduct by a court or, where appropriate, by an independent and impartial tribunal; (b) impose a duty on the State to give effect to the rights in subsections (1) and (2); and (c) promote an efficient administration. While it is still too early to assess the effects of these constitutional rights, it is noteworthy that these more refreshing and innovative measures build on those adopted by South Africa, that some of them require the enactment of supportive legislation, and that they also envisage some role for independent and impartial tribunals in the review of administrative conduct. I have already noted the strong, indeed almost exclusive focus in this chapter on anglophone constitutional systems and jurisprudence. More work needs to be done to portray the kinds of recognition of a right to administrative justice in ‘civil’ jurisdictions, and in this regard it is useful to point to the relevant provisions in the Charter of Fundamental Rights of the European Union21 proclaimed in 2000, and which became legally binding on the member states of the EU with the entry into force of the Treaty of Lisbon in December 2009. These read as follows: Article 41 Right to good administration

1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union. 2. This right includes: - the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; - the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; - the obligation of the administration to give reasons for its decisions. 21

Although of course there is a degree of influence from the common law of Great Britain and Ireland within the EU system. Charter of Fundamental Rights of the European Union, Nizza, 7 December 2000, in force 1 December 2009, OJ 2012 No. C 364/1.

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3. Every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States. 4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language. and Article 42 Right of access to documents Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to European Parliament, Council and Commission documents.

These provisions, while naturally applicable only at the supranational level of the EU itself and in cases applying EU law at the national level, can nonetheless be fairly regarded as establishing a substantial and meaningful level of commonality in approach to the required measure of protection to be accorded to the rights to administrative justice both within the common and civil law worlds, and perhaps an increasing awareness of the necessity for such protection at the supranational level. But is such high-level and relatively generalised protection sufficient to ensure compliance with their prescripts by those who wield public power, or is further detailed provision at the level of legislative statute necessary, or at least beneficial?

38.5 Statutory Support To what extent is it useful for any ‘new human right’ to achieve ready acceptance by those who exercise public power, particularly on behalf of the government, as a means to effective enforcement and fair application? A brief review of the situation in southern Africa provides a useful case study. While Namibia was the pioneer in constitutionalising a right to administrative justice, South Africa has taken the matter further. One critical difference is the requirement of the drafting of an act of parliament not only to provide structures and procedures to realise the rights accorded in the constitution, but also to seek to enhance the efficiency of the public service: some measure of balance between these two desirable outcomes is always in issue. The outcome is the Promotion of Administrative Justice Act (PAJA).22 The various judgments of the South African superior courts, in interpreting and enforcing the provisions of the PAJA, illuminate some of the problems which may arise when a constitutional and statutory overlay is imposed on the pre-existing common law of judicial review.23 Even a cursory consideration of the various points of controversy is beyond the scope of this exercise,24 but I raise the issue of statutory complementarity chiefly to demonstrate the importance of a subtle and consensual approach to the drafting of any statutory confirmation or expansion of the constitutional provision which enshrines a right. There is no doubt that allowing for the opportunity to elaborate on the often skeletal provisions in a constitution through statute may bring benefits, but if not done well, it can deliver problems of its own. Inevitably, also, provisions in laws are not 22 23 24

No. 3 of 2000. The leading work on this is C. Hoexter, Administrative Law in South Africa, 2nd ed. (Claremont: Juta, 2012). Some of the most important issues are dealt with in G. Quinot (ed.), Administrative Justice in South Africa:  An Introduction (Oxford:  Oxford University Press, 2015) and in L. Kohn and H. Corder, ‘Judicial Regulation of Administrative Action’, in C. Murray and C. Kirkby (eds.), South African Monograph on Constitutional Law, which

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much use unless they induce behavioural change in those who exercise public power and in the expectations of those on whom such power is visited, to which I turn in the concluding part of this chapter.

38.6 Changing Cultures One of the most enduring analyses of the process of fundamental constitutional change in South Africa was provided by Mureinik who, at the time of the transition to democratic rule, remarked that what was needed was a change from a ‘culture of authority to a culture of justification’.25 The concept of justification has become one of the cornerstones of South African constitutional law, and serves as an appropriate benchmark for other systems. It lies at the heart of appropriate levels of accountability, responsiveness and openness, which must be the foundation stones of any system of rules and laws which seeks to establish and promote participative constitutional democratic practices. I hope that I have succeeded in what appears above to have persuaded even the most sceptical observer that, in some measure at least, the protection of human rights to administrative justice is a desirable if not necessary element in any modern bill of rights. At the outset, I suggested that ‘rights’ could be positioned on a spectrum, ranging from essential to aspirational, whose effect would be to trump all other considerations, or at the very least to require government to prove on a balance of probabilities that it had acted reasonably and progressively to achieve the fulfilment of such rights. I argue that the analysis above shows conclusively that the right to administrative justice qualifies as a ‘new human right’, not merely a restatement of existing practice. I further suggested that certain rights, which seek to ensure honesty, fair process and reasonable impact in the allocation of social goods and services, could be regarded as a third species of right, called a fair process right, at a pervasive subsidiary level, compliance with which would be seen as a constitutional requirement, no matter whether the substantive right was regarded as a trump or an aspiration. It seems to me that the human right to administrative justice falls squarely within this species of right: while much of its scope is founded in ancient legal doctrine, its expression as a human right is ‘new’ and adds significantly to its weight and the prospects of compliance with it from those who wield public power. Some of those who remained inside South Africa and resisted apartheid relied implicitly on this right in organising resistance around themes such as no detention without trial or no banishment without a hearing, and many cases were brought and won on that basis.26 The use of rights to administrative justice at common law sought through applications for judicial review of administrative action has been described as an unwritten bill of rights.27 It is therefore perhaps not surprising that the rhetorical effect of such rallying cries translated into the elevation of such legal rights into constitutionally recognised human rights. One final observation must be made, as we move into an era in which nothing seems predictable, as established democracies surprise even themselves in the making of political and policy

25

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appears in A. Alen and D. Haljan (eds.), International Encyclopaedia of Laws: Constitutional Law (Alphen aan den Rijn: Wolters Kluwer, 2014), Suppl. 108, Part IV, Chapter 4. E. Mureinik, ‘A Bridge to Where? Introducing the Interim Bill of Rights’ (1994) 10 South African Journal of Human Rights 31. See, among many, R v. Ngwevela 1954(1) SA 123(AD) and Minister of Law and Order v. Hurley 1986 (3) SA 568 (A). See Hoexter, Administrative Law in South Africa, pp. 13, 58ff.; and H. Corder ‘The Development of Administrative Law in South Africa’, in G. Quinot (ed.), Administrative Justice in South Africa: An Introduction (Oxford: Oxford University Press, 2015) p. 15ff.

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choices, while both hope and despair seem to emanate with equal force and frequency from parts of the developing world, and while climate change wreaks irrevocable havoc:  it strikes me as paradoxically hopeful that the origins of this new right are to be found in parts of the global body politic which were only in the late 1980s the epitome of desperate injustice and the denial of fundamental human dignity. I hope that I am not reading too much into one small achievement of good governance; I think not. To conclude this summary overview of constitutional provisions in the area of administrative justice, it is as well to heed a warning given at the Breakwater Conference in Cape Town in 1993,28 the most important single event in the process of administrative law reform in the subcontinent. Baxter concluded his paper on rule-making and policy formulation as vital elements of the administrative justice landscape with a somewhat prescient comment:29 ‘Moreover, the [future] system should be built into the new constitutional framework of government at the outset, before the tradition of bureaucratic and political arrogance and complacency – so long a part of South Africa’s history – has an opportunity to re-assert itself.’ Ultimately, therefore, what is needed is a change of culture, towards greater accountability, responsiveness and openness – and anchoring such requirements in a human right to administrative justice may provide just the necessary encouragement for such a change.

28 29

For an account of the papers delivered on that occasion, see the 1993 volume of Acta Juridica. L. G. Baxter, ‘Rule-making and Policy Formulation in South African Administrative-law Reform’ (1993) Acta Juridica 176 at 196 (original emphasis).

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39 The African Right to Administrative Justice versus the European Union’s Right to Good Administration New Human Rights? Bucura C. Mihăescu-Evans

In his chapter entitled ‘A Right to Administrative Justice: “New” or Just Repackaging the Old?’,1 Hugh Corder provides a highly interesting introduction to the protection of the right to administrative justice in a number of African countries. His contribution traces the way in which this right has gained significance and has achieved the status of a constitutional (human) right in various African administrative and legal systems that have, since the 1990s, made the transition from dictatorship or authoritarianism to democracy. It also has the great merit of highlighting, on the one hand, the importance of the right to administrative justice for the achievement of the fair and equitable distribution of socio-economic goods and services in the African region and, on the other hand, the great potential of this right to bring about far-reaching changes in the way executive discretion is exercised, and thereby to ensure the fundamental fairness of the decision-making process. In this vein, Corder very interestingly argues for a ‘democratic necessity’ of administrative justice, before solemnly concluding his contribution with the idea that ‘[u]ltimately … what is needed is a change of culture, towards greater accountability, responsiveness and openness – and anchoring such requirements in a human right to administrative justice may provide just the necessary encouragement for such a change’.2 Inasmuch as nothing has to be added to the clear and complete overview made by Corder with regard to the African protection of the right to administrative justice, the present commentary will be conducted from a perspective which highlights some of the main points of similarity and dissimilarity between the African right to administrative justice and the EU right to good administration (Section 39.1). In order to keep track of the general framework of the project of which the present comment is a part, a parallel assessment of these rights will be carried out with respect to two particular issues that are at the very core of this project, namely the extent to which these rights are ‘new’ (Section 39.2) and the merits of framing them as ‘human’ rights (Section 39.3).

39.1 The EU Right to Good Administration versus the African Right to Administrative Justice: Points of Similarity and Dissimilarity as Regards Content At page 503 of his contribution in the present volume, Corder ends his listing of constitutional dispositions providing for a right to administrative justice with an explicit reference to Article 41 of 1 2

H. Corder, in this volume, p. 493. Corder, in this volume, p. 506 (original emphasis).

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the Charter of Fundamental Rights of the European Union (CFR), which solemnly provides for a fundamental ‘[r]ight to good administration’ in the EU legal order.3 This disposition led, although in a non-exhaustive manner, to the very first codification of some of the most important procedural guarantees in the EU legal order, namely the individual’s right to be heard, the right of access to the file, the right to require the administration to give reasons for its decisions, the right to determine the language to be used, the right to claim damages and, last but not least, the right of individuals to have their affairs handled impartially, fairly and within a reasonable time, also known as the ‘principle of care’. Although the formulation of the right to good administration in the CFR is prima facie concerned with the procedural protection of individuals in administrative proceedings, to which one may legitimately refer as the ‘subjective’ facet of good administration, it is nevertheless the case that the EU courts have consistently interpreted this notion as further implying  – in line with the approach taken by Corder with respect to the African right to administrative justice – ‘objective’ obligations upon the administration.4 An overview of the EU courts’ case law highlights that the various requirements of administrative justice that Corder outlines in his contribution and which constitute, according to him, an indispensable part of any constitutional democracy – namely those of ‘accountability’, ‘responsiveness’, ‘openness’, ‘transparency’, ‘honesty’, ‘fairness’, ‘equity’, ‘efficiency’, to which he adds the concept of ‘justification’ – are also part and parcel of the legal framework of the EU and of the jurisprudential discourse that EU judges have developed, over time, under the heading of good administration. First and foremost, it is worth remembering that the very first occurrence of good administration in the context of the preliminary workings of the CFR was made by the European Ombudsman in terms of a ‘fundamental right to an open, accountable and service-minded administration’.5 Second, it is interesting to stress that the terminology used by the EU courts with respect to the notion of good administration is, more often than not, phrased in ‘objective’ terms, reference being made to it as an ‘obligation’,6 a ‘duty’,7 a ‘rule’,8 a ‘requirement’,9 a ‘reason’,10 a ‘measure’,11 a ‘guarantee’12 or an ‘interest’.13 It stems from the EU courts’ case law that EU judges have, for instance, held that ‘the guarantees afforded by the European Union legal order in administrative proceedings include, in particular, the principle of sound administration, enshrined in Article 41 of the [CFR], which 3

4

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6 7 8 9 10 11 12 13

Charter of Fundamental Rights of the European Union, Nizza, 7 December 2000, in force 1 December 2009, OJ 2012 No. C 364/1. It is important to stress that the principle of good administration in the EU legal order, just like public law in general, has a dual purpose which consists in ensuring the quality and the efficiency of decision-making on the part of the administration (the ‘objective’ facet of good administration), while equally providing individuals with basic procedural rights in administrative proceedings and with the possibility of defending themselves against encroachments by the administration into their procedural rights (the ‘subjective’ facet of good administration). Speech of the European Ombudsman – Public Hearing on the draft Charter of Fundamental Rights of the European Union, Preliminary Remarks, available at www.ombudsman.europa.eu/en/activities/speech.faces/en/355/html .bookmark (emphasis added). For an overview of the various ‘objective’ requirements that the European Ombudsman has proposed to codify under the heading of good administration, see the European Code of Good Administrative Behaviour (2005). See e.g. Case T-62/98, Volkswagen AG v. Commission [2000] ECR II-02707, paras. 245 and 279. See e.g. Case T-36/06, Bundesverband deutscher Banken v. Commission [2010] ECR II-00537, para. 126. See e.g. Case 13-69, van Eick v. Commission [1970] ECR 00003, para. 4. See e.g. Case C-362/09 P, AthinaïkiTechniki v. Commission [2010] ECR I-13275, para. 70. See e.g. Case C-39/97, Kabushiki Kaisha v. Metro-Goldwyn-Mayer Inc. [1998] ECR I-05507, para. 21. See e.g. Case C-354/87, Weddel & Co. BV v. Commission [1990] ECR I-03847, para. 2. See e.g. Case T-436/09, Dufour v. ECB [2011] ECR II-07727, para. 30. See e.g. Case T-60/05, UFEX and Others v. Commission [2007] ECR II-03397, paras. 66–67 and 78.

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entails the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case’.14 This duty of a careful and impartial assessment implies the need for the administrative authority concerned to ‘carry out a detailed and thorough examination of all information, legal or factual, which may have a bearing on the adoption of a measure’,15 and this is so even in cases where the administration disposes of discretionary powers in dealing with its tasks.16 Thereby, as in the African legal order, the right to good administration in the EU acts as a counterweight to the discretionary powers of the administrative players.17 Further, the concept of ‘justification’ – which constitutes, according to Corder, the cornerstone of South African constitutional law, in that it lies at the heart of appropriate levels of accountability, responsiveness and openness – is also present in the EU legal order, as the ‘obligation of the administration to give reasons for its decisions’. This obligation, which is a constituting element of the right to good administration, as provided for in Article 41(2)(c) CFR, is an indispensable corollary of the right to effective remedy in that it may require the administrative authority involved to notify the reasons for its decisions.18 It thereby provides effective legal protection by enabling the courts to perform judicial review, while also constituting a countermeasure against administrative discretion. Shapiro has very interestingly stressed in this regard that ‘if administrative discretion is inevitable and desirable, then one obvious mode of denaturing discretion of its poisons is to set judges to watch administrators. Giving reasons is one of the mildest forms of judicial supervision of administrative discretion.’19 Last but not least, the requirements of ‘openness’, ‘efficiency’ and ‘transparency,’ and the rather synonymous concepts of ‘honesty’, ‘fairness’ and ‘equity’ to which Corder refers in his contribution, are also indissociably connected with the right to good administration, such as it is provided for in the EU legal order. Indeed, it is first interesting to observe that Article 298 of the Consolidated Version of the Treaty on the Functioning of the European Union (TFEU) – which provides for a legal basis for the adoption of an EU administrative law – states that ‘[i]n carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have the support of an open, efficient and independent European administration’.20 Second, the European Parliament has explicitly and consistently stressed that the requirement of ‘transparency’ is closely connected and even indissociable from the principle of good administration proclaimed in the CFR.21 Third, the interrelation between good administration and the ‘fairness’

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See e.g. GC, Judgment of 12 June 2014, Intel Corp. v. Commission, T-286/09, EU:T:2014:547, para. 359 (emphasis added). See e.g. Case C-408/04 P, Commission v. Salzgitter AG [2008] ECR I-02767, Opinion of AG Bot, para. 265. See e.g. Case C-310/04, Spain v. Council [2006] ECR I-07285, paras. 122 et seq. It is common ground within the EU Court’s case law that where the EU institutions have a power of appraisal, respect for the rights guaranteed by the EU legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case, the right of the person concerned to make their views known and to have an adequately reasoned decision. Only in this way can the Court verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present. See Case C-269/90, Technische Universität München v. Hauptzollamt München-Mitte [1991] ECR I-05469, paras. 13–14. For further applications of this rationale, see Cases T-285/03, Agraz and Others v. Commission [2008] ECR II-00285, paras. 49 and 61 and T-167/ 94, Nölle v. Council and Commission [1995] ECR II-02589, paras. 73 et seq. See e.g. Case 222/86, Unectef v. Georges Heylens and others [1987] ECR 04097, para. 15. M. Shapiro, ‘The Giving Reasons Requirement’ (1992) The University of Chicago Legal Forum 179 at 181. Consolidated Version of the Treaty on the Functioning of the European Union, Lisbon, 13 December 2007 in force 1 December 2009, OJ 2008 No. C 115/47 (emphasis added). See European Parliament, Resolution of 14 September 2011 on public access to documents (Rule 104(7)) for the years 2009–2010 (2010/2294(INI)), para. 36, available at www.europarl.europa.eu. See also European Parliament,

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requirement appears to be of such intensity that it has led some to argue that they are merely different ways of expressing the same concern.22 This strong interrelation has explicitly and consistently been emphasised by the European Parliament, on the occasion of the various proposals that it has made for a Law of Administrative Procedure of the European Union and in the context of which it has solemnly stressed that ‘[the principle of fairness] must be respected as a basic legal principle indispensable in creating a climate of confidence and predictability in relations between individuals and the administration’.23 Following the same line of reasoning, the president of the Court of Justice of the European Union (CJEU), Koen Lenaerts, writing extrajudicially, interpreted the principle of sound administration and its ‘fairness’ sub-component as one of the ‘trust-enhancing principles of [EU] law’.24 It stems from the foregoing that in spite of its formulation in the CFR in ‘subjective’ terms, the notion of good administration in the EU legal order is concerned not only with the procedural protection of individuals but also with the various ‘objective’ requirements outlined by Corder in his contribution. The EU right to good administration and the African right to administrative justice are thereby similar in their ‘objective’ facet. The two rights are nevertheless rather different as regards the ‘subjective’ parameter of the notion. Indeed, contrary to the EU right to good administration, its African counterpart, as it stands today, does not seem to be interpreted as a clear-cut subjective right of individuals but appears to be mostly concerned with the overarching necessity of ensuring lawful and fair regulation of the exercise of public power and of the performance of public functions.25 The future will tell how things are to develop in the African continent from this standpoint. For now, it is sufficient to predict that this difference is not impossible to overcome and that a subjective right to administrative justice may stem from the very formulation of the overwhelming majority of the African constitutional dispositions outlined by Corder, which are of a clear-cut ‘subjective’ nature, in that they explicitly stress that everyone/any person ‘has the right to’ have the basic requirements of administrative justice complied with by the administrative actors involved in the decision-making process.26 Moreover, such a development may also be the consequence of the fact that ‘subjective’ and ‘objective’ components of a legal principle might constitute two sides of the same coin, leading to the result that where a subjective right exists, an objective obligation

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Resolution of 14 January 2009 on public access to European Parliament, Council and Commission documents 2007/ 2154(INI)), para. 4, available at www.europarl.europa.eu. See Joined Cases 33/79 and 75/79, Kuhner v. Commission [1980] ECR 01677, Opinion of AG Mayras, at 1708. European Parliament, Resolution of 15 January 2013 with recommendations to the Commission on a Law of Administrative Procedure of the European Union (2012/2024(INI)). K. Lenaerts, ‘In the Union We Trust: Trust-Enhancing Principles of Community Law’ (2004) 41 Common Market Law Review 317 at 337–340. See e.g. the South African Promotion of Administrative Justice Act 3 of 2000 (PAJA) which, although it was sought to enact the (subjectively phrased) right to administrative justice provided for in s33 of the South African Constitution – disposition quoted by Corder, in this volume, p. 502 – explicitly stresses in its very introduction that it was enacted ‘[t]o give effect to the right to administrative action that is lawful, reasonable and procedurally fair and to the right to written reasons for administrative action as contemplated in s33 of the Constitution’. PAJA’s Preamble further highlights that it was enacted in order to ‘promote an efficient administration and good governance’ and to ‘create a culture of accountability, openness and transparency in the public administration or in the exercise of a public power or the performance of a public function, by giving effect to the right to just administrative action’, available at www .justice.gov.za/legislation/acts/2000-003.pdf. Among the listing of constitutional dispositions provided by Corder, in this volume, pp. 501ff., only Art. 18 of the Namibian constitution is phrased in ‘objective’ terms, by referring to the various obligations of the administrative actors involved; all the other dispositions are phrased in rather ‘subjective’ terms.

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might arise from it, and an objective duty of the administration might likewise result in a subjective right of an individual.27 Another main point of difference between the African right to administrative justice and the EU right to good administration is that the latter does not include among its constituting elements the individual’s right to effective judicial protection against an administrative decision taken against him or her. Indeed, if the various African constitutional dispositions that Corder describes28 explicitly refer to the right of individuals to seek redress before a competent court or tribunal, the EU right to good administration, as it is codified in Article 41 CFR, lacks any explicit mention in this regard. It is nevertheless important to stress that the explanations related to this disposition that were provided by the European Convention that drafted the CFR state the following: ‘The right to an effective remedy, which is an important aspect of this question, is guaranteed in Article 47 [entitled ‘Right to an effective remedy and to a fair trial’] of the Charter’. One may legitimately argue that the division of these two rights in the CFR is simply due to the fact that the latter disposition has a much wider scope than the one related to administrative proceedings. Thereby, these two rights, which are inextricably linked to one another, should be interpreted in a complementary fashion.29

39.2 The EU Right to Good Administration versus the African Right to Administrative Justice: ‘New’ Rights? In his concluding remarks, Corder provides an answer to the question raised in the title of his contribution by stressing that the African right to administrative justice qualifies as a ‘new human right’ and is, therefore, not merely a restatement of existing practice. According to him, while much of the scope of this right is founded in ancient legal doctrine, its expression as a human right is ‘new’, which adds significantly to its weight and the prospects of compliance with it from those who wield public power. What about the EU right to good administration: is it ‘new or just repackaging the old?’ The declaration of the right to good administration in the CFR led some to argue that it constituted a ‘new’ fundamental right in the EU.30 The preparatory workings of the Charter attest that this opinion was shared by some of the EU member states which interpreted this right as being ‘innovative’/‘new’, therefore contravening the general purpose of the CFR, which was to increase the visibility of existing rights and not to create anything new in substance. As a result, various political oppositions have been raised against the codification of the right to good administration in the CFR.31 27

28 29

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For an assessment in this regard, see B. C. Mihaescu-Evans, The Right to Good Administration at the Crossroads of the Various Sources of Fundamental Rights in the EU Integrated Administrative System (Baden-Baden:  Nomos Publishing, 2015), pp. 114–117. The Constitutional Court of South Africa has recently adopted such an approach in its ruling in Case CCT 254/16, State Information Technology Agency SOC Limited v.  Gijima Holdings (Pty) Limited of 14 November 2017, paras. 27–29, where it stressed, in substance, that if s33 of the Constitution is primarily concerned with ‘everyone’s right’ to procedurally fair, reasonable and lawful administrative action, the bearer of the ‘corresponding obligations’ that are intended to give effect to those rights is the state: available at www.saflii.org/za/ cases/ZACC/2017/40.pdf. Corder, in this volume, pp. 501ff. For further details as regards the interrelation between Arts. 41 and 47 CFR, see Mihaescu-Evans, The Right to Good Administration, pp. 79–87. See e.g. A. Gruber, ‘La Charte des Droits Fondamentaux de l’Union Européenne: un Message Clair Hautement Symbolique’ (2001) 15 Petites Affiches 4 at 12–13. These political oppositions were mainly due, in reality, to the fears expressed by some of the EU member states that they were going to be bound by the right to good administration in purely national administrative procedures.

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For part of the legal doctrine, what was ‘innovative’ was the fact that the Charter did not place the principle of good administration in terms of ‘objective’ legality in the public interest but in the language of ‘subjective’ rights for individuals.32 It is from this perspective that the right to good administration was interpreted as a ‘novel’,33 ‘modern’34 right. The European Commission stressed in this regard in one of its Communications that ‘the Charter enshrines certain “new” rights which already exist but have not yet been explicitly protected as fundamental rights, notwithstanding the values they are intended to protect, such as the right to good administration’.35 Against these interpretations, an overview of the EU courts’ case law in administrative matters shows, on the one hand, that the principle of good administration has been present in the praetorian discourse since the very early case law in administrative matters, the first reference to this principle having been made by the CJEU as early as 1957.36 Thereby, the codification of the socalled ‘new/novel’ right to good administration in the CFR constitutes in reality the culmination of an evolutionary process which dates back several decades. On the other hand, the principle stems from jurisprudence where even the ‘subjective’ nature of the principle of good administration pre-dated the codification of this right in Article 41 CFR. Indeed, in the benchmark Tillack v. Commission case, the General Court of the EU solemnly held that the principle of sound administration, ‘when it constitutes the expression of specific rights such as the right to have affairs handled impartially, fairly and within a reasonable time, the right to be heard, the right to have access to files, or the obligation to give reasons for decisions, for the purposes of Article 41 of the Charter’, confers rights upon individuals.37 Since then, it has been common ground within the case law that the principle of good administration is likely to confer subjective rights upon individuals in administrative proceedings whenever it mirrors one of its sub-components, such as those listed in Article 41 CFR.38 It stems from the foregoing that, contrary to the approach taken by Corder in his contribution, according to which the African right to administrative justice represents a ‘new’ right, the EU counterpart of this right, as it is codified in Article 41 CFR, constitutes a restatement of existing practice that had been clearly established by the EU courts in previous case law. Thereby, one may legitimately hold that the fundamental right to good administration in the CFR constitutes a mere ‘repackaging of the old’.

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See e.g. K. Kańska, ‘Towards Administrative Human Rights in the EU: Impact of the Charter of Fundamental Rights’ (2004) 10 European Law Journal 296 at 300. Various other references have been made to the ‘novel’ nature of the right to good administration: see e.g. P. Bonnor, ‘The Right to Good Administration’ (2006) 182 Deutsche Hochschule für Verwaltungswissenschaften 71 at 74. See e.g. L. Burgorgue-Larsen, ‘La Charte des Droits Fondamentaux Expliquée au Citoyen’ (2000) 4 Revue des Affaires Européennes 398 at 402, and M. Oosting, ‘The Role of a Modern Administration in a State Governed by the Rule of Law’, The Right to Good Administration, European Conference organised by the Council of Europe in co-operation with the Ministry of the Interior and of Public Administration of Poland and the Office of the Ombudsman of Poland, Warsaw, 4–5 December 2003, available at www.coe.int/. See Commission Communication of 13 September 2000 on the Charter of Fundamental Rights of the European Union, COM (2000) 559 final, Brussels. Joined Cases 7/56, 3/57 to 7/57, Algera and Others v. Common Assembly of the European Coal and Steel Community [1957] ECR 00081. Case T-193/04, Tillack v. Commission [2006] ECR II-03995, para. 127. See e.g. Case F-99/06, López Teruel v. OHMI [2007] ECR FP-I-A-1-00147; FP-II-A-1-00797, para. 92; Case C-39/09 P, SPM v. Council and Commission [2010] ECR I-00038, paras. 65–66; Case T-128/05, SPM v. Council and Commission [2008] ECR II-00260, para. 127.

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39.3 The EU Right to Good Administration versus the African Right to Administrative Justice: ‘Human’ Rights? In the introductory part of his contribution, after having addressed some core constitutional questions as regards, inter alia, the merits of rights such as the right to administrative justice to be included as constitutional guarantees and of being qualified as ‘human’ rights, Corder argues, in essence, that most (if not all) rights included in a constitutional bill of rights, even if procedural in nature, should qualify as human rights, by virtue at least of the close connection which exists between them and more substantive human rights. He further claims that regarding such rights as ‘human’ provides a significant boost to their constitutional weight and respectful implementation, before stressing in his final considerations that ‘the protection of human rights to administrative justice is a desirable if not necessary element in any modern bill of rights’.39 What about the status of the EU right to good administration: to what extent is it qualified as a ‘human’ right of individuals? In this regard, it is important to stress that if the CJEU has, since its very early case law, decided to assess the lawfulness of EU (then Community) acts in light of fundamental rights by consistently holding that ‘fundamental rights form an integral part of general principles of law, the observance of which it ensures’,40 it nevertheless has always been somehow ‘parsimonious’ in using the language of ‘human’ rights. Indeed, besides some scarce references made by its Advocates General to what they labelled ‘fundamental human rights’,41 the CJEU has, so far, refused to employ the expression ‘human rights’ even in relation to what one may consider to be the most fundamental human nature rights of individuals, such as the right to life, human dignity and integrity of the person, to name but a few. Therefore, as EU law currently stands and is interpreted by EU judges, the EU constitutional42 right to good administration may not be qualified as a ‘human’ right but as a (mere) ‘fundamental’ right of the European Union.

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Corder, in this volume, p. 505. See e.g. Case C-29/69, Stauder v. City of Ulm [1969] ECR 00419, para. 7 and Case C-4/73, Nold v. Commission [1974] ECR 00491, para. 13. See e.g. Case C-21/74, Airola v. Commission, Opinion of AG Trabucci [1975] ECR 00221, at 233, and Case C-288/05, Kretzinger, Opinion of AG Sharpston [2007] ECR I-06441, para. 101. The ‘constitutional’ status of good administration is recognised in both its quality as a CFR right and as a general principle of EU law. In this latter regard, it is important to remember that the Court of Justice explicitly upheld in Audiolux that ‘[t]he general principles of Community law have constitutional status’: see Case C-101/08, Audiolux v. Groupe Bruxelles Lambert and Others [2009] ECR I-09823, para. 63. The status of good administration as a general principle of law is also clearly established in the EU Court’s casel aw, see e.g. Case C-290/07 P, Commission v. Scott, Opinion of AG Mengozzi [2010] ECR I-07763, para. 60.

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40 Anti-Corruption Recaptured and Reframed Andrew Spalding

40.1 Introduction This chapter1 is animated by a simple question: would the global anti-corruption movement be strengthened if we understood corruption as the violation of a human right? Identifying corruption as a social problem is not new; as this chapter will show, it is quite old indeed. Nor is there novelty in the claim that governments can and should take measures to reduce corruption. Beginning with the aptly named ‘corruption eruption’ of the 1990s, which saw the sudden proliferation of anti-corruption scholarship, international instruments, and national laws and enforcement initiatives, the fight against corruption has become securely established in global discourse and law enforcement. But be that as it may, corruption is not now widely regarded as the violation of a human right. We all know that corruption is a means by which other, widely recognised rights – due process or education, for instance – are routinely and egregiously violated. But corruption is not treated in political thought, in political discourse or in law as the direct violation of an independent, freestanding human right. That is, we do not yet recognise, in theory or in practice, the existence of a fundamental human right to be free from official, systemic corruption. Would it matter? This chapter endeavours to demonstrate that it very well may. But in so doing, it does not argue for the amendment of existing treaties or the ratification of new ones, nor for triggering the jurisdiction of human rights tribunals. Rather, this chapter urges a conceptual and rhetorical reframing of corruption. The potential benefits of doing so will be explained below. Kerstin von der Decken and Nikolaus Koch developed a three-part typology for the rights enunciated in this volume:2 (1)  new rights; (2)  existing rights extended to new groups; and (3) rights adapted or derived from existing rights. Freedom from corruption may fall into the first category, though perhaps not as naturally as other rights might: the novelty here lies not in naming the problem, but in reframing it. Accordingly, this chapter provides intellectual support to the claim that corruption is properly understood as a violation of a free-standing right, and that conceptually and rhetorically 1

2

Portions of this chapter previously appeared as ‘Freedom from Official Corruption as a Human Right’, Brookings Governance Studies, 28 January 2015 (co-authored with Matthew Murray), available at www.brookings.edu/wpcontent/uploads/2016/06/Murray-and-Spalding_v06.pdf; ‘Corruption, Corporations and the New Human Right’ (2013–2014) 91 Washington University Law Review 1365; and ‘Andy Spalding Answers the Call of Nature’, The FCPA Blog: News and Commentary about White-Collar Crime, Enforcement and Compliance, 26 August 2015, available at www.fcpablog.com/blog/2015/8/26/andy-spalding-answers-the-call-of-nature.html. K. von der Decken and N. Koch, in this volume, pp. 11ff.

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recognising this human right would advance the cause of coordinated international anticorruption enforcement. It explains why the reframing matters, and provides an illustrative example of one prominent area of anti-corruption enforcement badly in need of a rights-based focus. It then briefly describes the forces that drove the anti-corruption movement in which we now live, as well as the now-prevalent understanding of the relationship between human rights and corruption. It surveys diverse intellectual traditions  – Anglo-American, Confucian and Islamic – to show that freedom from corruption is indeed a principle of government that is recognised cross-culturally. As such, it may be among the most basic and credible claims to a universal right we could make.

40.2 Why Reframe as a Human Right? Reframing corruption as a human right has three principal benefits. First, acknowledging a universal human right to be free from corruption effectively counters the most oft-heard objection to international anti-corruption initiatives: that corruption is cultural. A human right by definition is ‘a universal moral right, something which all [persons], everywhere, at all times ought to have, something of which no one may be deprived without a grave affront to justice, something which is owing to every human being simply because [s]he is human’.3 Rights exist irrespective of whether any particular government, set of contemporary cultural practices or even prevailing public opinion acknowledges them. The effort to change public opinion may not be exactly what many Westerners think. Though it is too often – and too easily – said that corruption is ‘cultural’ in some parts of the world, that may be a misstatement. No culture teaches that corruption in its purest (if that is indeed the right word) form is good. Other than perhaps the beneficiaries of corruption, virtually no one believes that a suitcase full of cash, privately given to an official in exchange for a benefit to which the payor is not legally entitled, is a good thing, such that we should not deter it even if we could. The debates about culture and corruption concern the margins of bribery – gift-giving, nepotism etc. – not whether corruption in its purest form is good. But there are many communities that have resigned themselves to bribery as being necessary or, worse yet, inevitable  – something that is inherent in human sociality and therefore unchangeable. This way of thinking may be effectively captured in a graphic, if unsavoury, metaphor. It seems to this author that many in the world now think of official corruption in more or less the same way that all of us might think about the necessity of using the restroom. It is dirty, disease-ridden and unpleasant, but absolutely inherent in human life. Though it can be confined to private spaces, it is nonetheless unavoidable. More to the point, the notion that we could somehow reduce or eliminate corruption from human society would be written off as fanciful and ridiculous. This is the mindset that must change if anti-corruption reforms are to have enduring effect. People must come to believe that endemic corruption is not inherent in human society. Though we may never succeed in eliminating corruption, any more than we may succeed in eliminating murder or assault, we can significantly reduce it. And each citizen is entitled to a government that takes reasonable measures to do so. This is the thought that a rights framework can help elicit. The second benefit of reframing corruption as a violation of a free-standing right concerns the impact on existing enforcement initiatives. For example, among the most active areas of 3

M. Cranston, What Are Human Rights? (London: Bodley Head, 1973), p. 36 quoted in A. D. Renteln, International Human Rights: Universalism vs. Relativism (Newbury Park, CA: Sage Publications, 1990), p. 47.

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anti-corruption enforcement today is foreign bribery. As the following sections will further describe, enforcement agencies today treat bribery principally as a problem of corporate governance. The remedies primarily concern legally mandated reforms within the offending corporation. The criminal penalties, though often quite substantial, are merely collected and deposited in the treasury of the offending company’s government; when US companies are penalised for bribing abroad, that money is deposited in the US Treasury. But the principal victims of foreign bribery are the citizens whose governments are corrupt, and they benefit only indirectly from corporate governance improvements. A rights-based framework can redirect our enforcement initiatives towards improving the conditions in which victims of bribery live. Finally, deeming corruption a rights violation gives these initiatives greater normative weight, heightening their importance in public policy discussions. Rights violations have long been understood as more egregious, and meriting a higher enforcement priority, than torts or even crimes. Rights violations are ‘more resistant to trade-offs’,4 or, as the prominent legal philosopher Ronald Dworkin famously said, rights are ‘trumps’.5 We may not all agree that anti-corruption truly is a trump – one might imagine circumstances in which corruption might be tolerated in the name of a greater good, or where rigid anti-corruption enforcement does more harm than good. But corruption should be regarded as a first-order harm, a violation of the most basic principles of government. A rights framework may reorient our thinking in this way.

40.3 The ‘Corruption Eruption’ Recognising freedom from corruption as an independent human right may be the next step in a movement that is now a quarter-century old. The economist Moises Naím coined the term ‘corruption eruption’ in 1995 to describe that decade’s extraordinary surge in attention from law-makers, commentators and citizens to the problem of public corruption.6 This so-called eruption occurred along several dimensions, and was due to a variety of cultural, legal and economic changes that in large part sprung from the collapse of the Cold War. Societies that to varying degrees had historically tolerated corruption were suddenly protesting, resulting in high-profile resignations and impeachments around the world. These occurred both in countries with relatively strong rule-of-law traditions, such as Great Britain, France and the USA, as well as countries still seeking to build such traditions like Venezuela. The eruption even spilled over into Brazil, with the impeachment of President Fernando Collor de Mello, who claimed to be a ‘caçador de marajás’ (hunter of overpaid bureaucrats). So too did anti-corruption scholarship explode during this time. After the foundational work of political scientists Joseph Nye and Samuel Huntington in the 1960s, economist Susan RoseAckerman in the 1970s and Robert Klitgaard in the 1980s, in the 1990s the interdisciplinary study of corruption began to produce innumerable articles.7 Perhaps most importantly, the 1990s and first few years of the 2000s yielded a series of international anti-corruption conventions that provide the foundation for anti-corruption initiatives to this day. These include:  the Inter-American Convention against Corruption (1996); 4

5 6 7

J. Griffin, On Human Rights (Oxford: Oxford University Press, 2008), p. 37, quoted in J. Nickel, ‘Human Rights’, in E. Zalta (ed.), The Stanford Encyclopaedia of Philosophy (2016), available at http://plato.stanford.edu/entries/rightshuman/, section 1. R. Dworkin, Taking Rights Seriously (Harvard University Press, 1978), p. xi. M. Naím, ‘The Corruption Eruption’ (1994–1995) 2 Brown Journal of World Affairs 245. For a modern bibliography of anti-corruption scholarship, see the Global Anti-Corruption Blog, available at https:// globalanticorruptionblog.com/.

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the Organisation for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1997); the Council of Europe’s Group of States against Corruption (1999) with its Criminal Law Convention (2002) and Civil Law Convention (2003); the United Nations Convention against Corruption (2002); the African Union Convention on Preventing and Combating Corruption (2003); the Asia Pacific Economic Cooperation Course of Action on Fighting Corruption and Ensuring Transparency (2004); and others.8 But if scholars had been talking about corruption as far back as the 1960s, why did the full ‘eruption’ occur only in the 1990s? The first and most obvious reason was the collapse of the Soviet Union and the rapid transition to free markets and elected governments. With the end of communism as a formidable global force (Chinese communism, of course, is not communism by any meaningful definition of the word) came a diminished sense of our resignation to the inevitability of corruption. This occurred both among citizens, whose expectations changed, and among states and international organisations that no longer needed to tolerate corrupt dictators to further Cold War goals. As Naím explained, ‘secrecy and Orwellian manipulation of the truth – those cornerstones of authoritarian and totalitarian rule – have become increasingly difficult to maintain’9 in the face of ever-expanding liberalisation. This connection between centralised authority and corruption has long been recognised, and most famously articulated by Robert Klitgaard. He wrote that corruption depends on three variables: the monopoly on the supply of a good or service (M), and the government’s discretion (D) in allocating that good or service, but which can be checked by the officials’ accountability (A) for such allocations, creating a memorable equation: C=M+D−A.10 Where the government monopoly is weakened, corruption is expected to decrease. So too did liberalisation bring an increase in international trade, and with it, increased expectations concerning the business environments of other countries. As major companies increasingly invested overseas, the degree of corruption became of paramount concern. The governments of developed countries became interested in how their companies were behaving overseas, and began enforcing prohibitions on foreign bribery. As one set of commentators put it, ‘[i]n the integrated economy, there is no somewhere else’.11 With global interdependence came an expectation of sameness, and of fairness. Finally, liberalisation brought with it much higher scrutiny of government and business conduct from the mass media. This occurred both because countries became more open and the press had greater freedom, but also because technological developments made possible the rapid spread of information. Media conglomerates emerged, satellite broadcasts became commonplace and the Internet continued the trend of drawing people into more regular interaction.12 So too have some observed that the culture of journalism changed in this era, becoming increasingly aggressive and doing more probing investigative reporting.13 Following this eruption in scholarship, and both international and national law, came a focus on enforcement. Though this focus concerned various forms of corrupt conduct  – money laundering, embezzlement, tax evasion etc.  – plainly among the most impactful and 8

9 10 11 12 13

See P. Glynn, S. J. Kobrin and M. Naím, ‘The Globalization of Corruption’, in K. A. Elliott (ed.), Corruption and the Global Economy (Washington DC: Institute for International Economics (US), 1997), p. 7. Ibid., p. 9. R. Klitgaard, Controlling Corruption (Berkeley: University of California Press, 1991), p. 75. Glynn, Kobrin and Naím, ‘Globalization of Corruption’, p. 13. Naím, ‘The Corruption Eruption’, p. 13 Ibid.

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controversial has been international bribery. And as the next section explains, anti-bribery enforcement illustrates the need for a new rights framework.

40.4 The Discourse of White- Collar Crime Perhaps the poster child for anti-bribery enforcement is the German engineering firm Siemens, which in 2008 paid a combined penalty of roughly US$1.5 billion for bribery across the developing world. Siemens’ systematic bribery in multiple sectors across the developing world compromised an assortment of widely recognised human rights. But the government’s filings are remarkably silent on the issue of overseas impact. These filings are instead written in what we might call the discourse of white-collar crime. Siemens, a manufacturer of industrial and consumer products based in Germany,14 is the quintessential multinational corporation. After the Second World War had destroyed much of its business,15 Siemens began building a multinational operation that now consists of over 1,800 legal entities with 400,000 employees in 190 countries.16 In 2001 it listed American Depository Shares on the New  York Stock Exchange, thus becoming an ‘issuer’ for purposes of the US Foreign Corrupt Practices Act (FCPA) and triggering its jurisdiction.17 Siemens may now regret that decision: it ultimately paid a total of US$1.6 billion in fines, penalties and disgorgement of profits, the largest settlement in FCPA history.18 The US Securities and Exchange Commission alleged that between 2001 and 2007 the conglomerate made at least 4,200 payments, totalling over US$1.4 billion, to bribe government officials around the world in return for business.19 As the government’s pleadings described in detail, Siemens’ bribery scheme would corrupt various sectors of society in numerous countries. In infrastructure, arguably the most critical sector to a developing country’s growth, Siemens and its subsidiaries paid Chinese officials US$22  million to fraudulently obtain contracts for rail construction20 and US$25  million to construct high-voltage transmission lines;21 US$17  million in Venezuela for more railway contracts;22 US$800,000 for the construction of traffic control systems in Russia;23 US$20 million in Israel for contracts to build and service power plants;24 US$2.6 million in connection with refinery projects in Mexico;25 US$5 million for a contract to install mobile telephone services in Bangladesh;26 and US$12 million in connection with telecommunications in projects in Nigeria, where Siemens’ bribery practices were allegedly ‘long-standing and systematic’.27 In the health care sector, Siemens paid US$14  million in connection with the sale of medical equipment 14

15 16 17 18

19 20 21 22 23 24 25 26 27

Siemens builds locomotives, traffic control systems and electrical power plants, as well as control systems, medical equipment and electrical components. See United States District Court for the District of Columbia, US Securities and Exchange Commission v. Siemens Aktiengesellschaft, Complaint by the Plaintiff, 12 December 2008, Case No. 08 Civ. 02167, para. 3 (hereinafter ‘SEC Complaint’). Ibid., paras. 8, 9. Ibid., para. 3. Ibid., para. 4. US Department of Justice, ‘Siemens AG and Three Subsidiaries Plead Guilty to Foreign Corrupt Practices Act Violations and Agree to Pay $450 Million in Combined Criminal Fines’, Press Release No. 08-1105, 15 December 2008. SEC Complaint, para. 2. Ibid., paras. 16–17. Ibid., para. 18. Ibid., paras. 28–29. Ibid., paras. 25–26. Ibid., paras. 17–18. Ibid., para. 26. Ibid., para. 19. Ibid., para. 29.

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to state-owned hospitals;28 US$55 million in connection with the sales of medical equipment in Russia, routed through Dubai;29 and a Siemens representative picked up an envelope with US$183,000 left by a Hong Kong businessman in a Singapore hotel, then flew to Hanoi Airport to pass it on to another Siemens representative, who used it to bribe the Vietnamese Ministry of Health.30 But perhaps the most egregious offence from a foreign policy perspective was Siemens’ role in corrupting the UN Oil for Food Program. This was designed to alleviate the suffering of Iraqi citizens caused by the economic sanctions imposed against the Hussein regime following the Gulf War.31 The Hussein regime soon adopted a policy, enforced across the Iraqi ministries, to require suppliers to pay a 10-per-cent kickback on each contract. Foreign suppliers were instructed to inflate their bids and purchase orders by 10 per cent, thus allowing the suppliers to collect the money from the UN escrow account and then redirect it to Hussein’s officials. The suppliers thus became middlemen, transferring money from the sale of crude oil back into the hands of the officials, and thereby directly undermining the UN-imposed sanctions regime and perpetuating Hussein’s rule. Former Federal Reserve Chairman Paul Volcker would ultimately be asked to lead an independent UN-commissioned committee, and found that the Hussein regime had collected US$1.7 billion in bribes.32 Operating through French, Turkish and Middle Eastern subsidiaries, Siemens paid kickbacks to the Hussein regime of approximately US$1.7 million. These bribes allowed the conglomerate to fraudulently obtain contracts that would yield approximately US$38 million in profits.33 Siemens’ bribes across the developing world thus variously compromised the right to medical care, to equality of access to public services, to self-determination, to political representation and ultimately to the basic rule of law. But despite these manifest human rights implications, the way in which the US Securities and Exchange Commission (SEC) and the US Department of Justice ultimately characterised Siemens’ misconduct made for a sharp and telling contrast. The settlement documents noted that Siemens created payment schemes that the ‘company’s inadequate internal controls allowed to flourish’. Siemens used numerous ‘slush funds’ and ‘offbooks accounts maintained at unconsolidated entities’. Indeed, the ‘tone at the top’ at Siemens was ‘inconsistent with an effective FCPA compliance program’ and ‘created a corporate culture in which bribery was tolerated and even rewarded at the highest levels of the company’.34 The SEC’s press release quoted an associate director of the Enforcement Division to say: ‘The day is past when multi-national corporations could regard illicit payments to foreign officials as simply another cost of doing business.’35 Similarly, the SEC’s litigation release notes that Siemens’ Managing Board ‘was ineffective in implementing controls’ and in meeting the ‘U.S. regulatory requirements that Siemens was subject to following its … listing on the New York Stock

28 29 30 31

32

33 34

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Ibid., para. 23. Ibid., para. 27. Ibid., paras. 22–23. Under the programme, Iraq could sell its oil and deposit the proceeds in a UN-managed escrow account. Funds in the account would thus be used for the limited purpose of purchasing food, medicine and infrastructure supplies. See e.g. S. A. Notar, ‘The Oil-for-Food Program and the Need for Oversight Entities to Monitor UN Sanctions Regimes’ (2007) 101 American Society for International Law Proceedings 163. Independent Inquiry Committee into the United Nations Oil-for-Food Programme, The Manipulation of the Oil-forFood Programme by the Iraqi Regime, Final Report, 27 October 2005, UN Doc. SC/8492. SEC Complaint, paras. 29–31. US Securities and Exchange Commission, ‘SEC Charges Siemens AG for Engaging in Worldwide Bribery’, Press Release, 15 December 2008. SEC, ‘SEC charges Siemens AG’.

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Exchange’.36 It further explained that ‘false invoices and payment documentation was created to make payments to business consultants under false agreements’ and that ‘illicit payments were falsely recorded as expenses for management fees, consulting fees, supply contracts … and commissions’.37 The US Department of Justice ultimately proclaimed that its enforcement efforts would ‘level the business playing field, making it … fair to those who seek to participate in it’.38 This is the discourse of white-collar crime enforcement, not of human rights. The SEC and the US Department of Justice documents make virtually no mention of the damage done to the affected communities. Besides cursory uses of terms like ‘corruption’, the legal claims are resolved without any evident regard for the resulting human rights abuses in Iraq, China, Russia, Venezuela, Vietnam and the other countries encompassed by Siemens’ bribery scheme. This chapter posits that reframing corruption as a rights violation can refocus our attention on bribery’s overseas impact. But to do so, we must move beyond the current, prevailing view of corruption as a means of violating other rights, but not as the direct violation of an independent, free-standing right.

40.5 The Prevailing View: Corruption as a Means of Violating Other Rights The broader international community has hesitated to embrace the right to be free from corruption. Rather, the major international instruments, as well as academic and civil society commentators, generally regard corruption as merely a means of violating other, already recognised rights. The leading anti-corruption non-governmental organisation (NGO) Transparency International teamed up with the International Council on Human Rights Policy to write a white paper aptly entitled ‘Corruption and Human Rights:  Making the Connection’.39 Though they acknowledge that ‘the cycle of corruption facilitates, perpetuates and institutionalizes human rights violations’,40 they expressly decline to embrace corruption as a direct rights violation. Electing instead to take ‘a different approach’,41 they frame corruption as a means of violating other rights.42 They conclude that anti-corruption programmes might therefore incorporate ‘human rights principles and methods’,43 but that corruption does not inherently constitute a rights violation. This approach – corruption as a means by which other rights are violated – also pervades the academic commentary. Even those scholars mounting the most rigorous defence of corruption as a rights violation ultimately fall back to the means framework. Rather than forging a new human right, they will more diligently catalogue the myriad rights that corruption compromises: civil and political rights such as equality, non-discrimination, fair trial or political participation; or 36

37 38 39

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US Securities and Exchange Commission, Litigation Release No. 20829, 15 December 2008, Securities and Exchange Commission v. Siemens Aktiengesellschaft, Civil Action No. 08 CV 02167 (D.D.C.). SEC, Litigation Release. US Department of Justice, ‘Siemens AG and Three Subsidiaries Plead Guilty’. International Council on Human Rights Policy and Transparency International, Corruption and Human Rights: Making the Connection (Versoix: International Council on Human Rights Policy, 2009), p. vi. Ibid., p. 3. Ibid. Ibid., p. 27; see also A. M. Truelove, ‘Oil, Diamonds, and Sunlight: Fostering Human Rights through Transparency in Revenues from Natural Resources’ (2003–2004) 35 Georgetown Journal of International Law 207 at 207: ‘Government corruption provides both an incentive and a means for human rights violations.’ International Council on Human Rights Policy and Transparency International, Corruption and Human Rights, p. 3.

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economic, social and cultural rights such as the rights to food, adequate housing, education or health.44 But this approach falls well short of establishing freedom from corruption as an inherent right. This dichotomy between corruption and human rights is generally reinforced by the major international instruments: the anti-corruption conventions do not frame corruption as a rights violation, and the human rights instruments do not even mention corruption. The principal international anti-corruption instrument, the United Nations Convention against Corruption,45 enumerates diverse forms of corruption such as bribery, embezzlement, trading in influence and others. But the document only makes passing references to various discrete human rights, and generally in reference to the collateral impact of anti-corruption enforcement measures on other rights.46 It generally avoids taking a position on the relationship between corruption itself (as opposed to anti-corruption measures) and human rights. This pattern is likewise observed in the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.47 Certain regional anti-corruption instruments more directly engage corruption’s impact on human rights; but where they do, they again frame corruption as a means by which rights are violated. The Council of Europe’s Group of States against Corruption (GRECO)’s Criminal Law Convention on Corruption, and its separate Civil Law Convention on Corruption, contain identical language: ‘corruption threatens the rule of law, democracy, and human rights.’48 A similar approach appears in the African Union’s Convention on Preventing and Combating Corruption (2003).49 The Inter-American Convention against Corruption and the Asia Pacific Economic Co-operation (APEC) Course of Action on Fighting Corruption and Ensuring Transparency, by contrast, make no mention of human rights at all. Human rights instruments also fail to mention corruption. In the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights, the word ‘corruption’ does not even appear, nor does freedom from corruption by any other name. This is likewise true of the European Convention for the Protection of Human Rights, the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights and the African Charter of Human and Peoples’ Rights. But these documents were all ratified prior to the so-called ‘corruption 44

45 46

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M. Boersma, Corruption: A Violation of Human Rights and a Crime under International Law? (Cambridge: Intersentia, 2012); see also N. Kofele-Kale, ‘The Right to a Corruption-Free Society as an Individual and Collective Human Right: Elevating Official Corruption to a Crime under International Law’ (2000) 34 The International Lawyer 149, who argues, at 165, that combating corruption will ‘better enable a country to guarantee the economic and social rights of its inhabitants’ and to ‘enable individuals to know their rights, to claim them, to realize and to enjoy them and the human dignity they promise’; see also UNGA, Resolution 41/128 on Declaration on the Right to Development, 4 December 1986, UN Doc. A/RES/41/128. Convention against Corruption, New York, 31 October 2003, in force 14 December 2005, UN Doc. A/58/422. The document does make various brief references to discrete rights, including the right to exchange information in relation to the participation of civil society in anti-corruption measures (Art. 13); property ownership rights in relation to money laundering (Art. 23), the return and disposal of stolen assets (Art. 57); protecting the defendant’s due process rights during a corruption-related prosecution (Arts. 30 and 32) or extradition (Art. 44); ownership rights over frozen assets (Art. 31); and other rights acquired by third parties (Arts. 34 and 55). Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Paris, 17 December 1997, in force 15 February 1999, 2802 UNTS 225, Arts. 1 and 3. Criminal Law Convention on Corruption, Strasbourg, 27 January 1999, in force 1 July 2002, 2216 UNTS 225, see the Preamble; Civil Law Convention on Corruption, Strasbourg, 11 April 1999, in force 1 November 2003, 2246 UNTS 3, see the Preamble. African Union Convention on Preventing and Combating Corruption, Maputu, 7 November 2003, in force 5 August 2006, 2860 UNTS 113.

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eruption’,50 a period beginning in the 1990s when the problem of corruption rose to prominence in global policy discussions.

40.6 Framing Corruption as a Direct Rights Violation Although the international instruments lend scant support, legal philosophers have long acknowledged that they are but one of several bases for making a rights argument.51 Two others hold great promise. First, and historically the most foundational, is natural law, particularly the writings of John Locke. Although Locke did not use the term corruption, the concern with protecting citizens from the abuse of public office pervaded his rights theory. Indeed, a close reading reveals that the well-known Lockean right to liberty is actually just another name for the right to be free of corruption. Locke argues that we can understand the purpose of government by first reflecting on what the human condition is or would be in its absence, a condition he called the state of nature. In the state of nature, we are all free and equal, enjoying our natural right to liberty. However, owing to this absolute freedom and equality, we lack a neutral third party with the authority to resolve disputes. We are therefore each left to enforce the ‘law of nature’ in our own cases. Predictably, this system breaks down, as ‘self-love will make men partial to themselves and their friends’.52 Humankind thus needs a government, a ‘common measure to decide all controversies’53 that will remedy ‘those evils which necessarily follow from men being judges in their own cases’.54 The administration of justice is tainted or, if you will, corrupted, by self-interest. What Locke calls ‘civil society’ is thus formed by creating a government that is ‘bound to govern by established standing laws, promulgated and known by the people’. Such a government does not compromise our natural liberty; to the contrary, it guarantees it: ‘For in all the states of created beings, capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others, which cannot be where there is no law.’ Liberty, by definition, is ‘to have a standing rule to live by, common to every one of that society, and made by the legislative power … not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man’.55 In more contemporary terms, our right to liberty only exists where government officials do not abuse their public office for private gain; that is, where they do not act corruptly. Where officers do so act, citizens ‘have no such decisive power to appeal to, [and] they are still in the state of Nature’.56 Corruption thus voids the social contract, destroys civil society, violates our right to liberty, and returns society to a state of nature. Indeed, when Locke defines tyranny as ‘making use of the power any one has in his hands not for the good of those who are under it, but for his own private, separate advantage’,57 he is describing what we today call corruption. The conviction that our natural right to liberty can only exist in the absence of corruption was a dominant intellectual influence at the founding of America. The Declaration of Independence’s promise of ‘life, liberty and the pursuit of happiness’ is derived directly from 50 51

52 53 54 55 56 57

Naím, ‘The Corruption Eruption’. Renteln, Universalism vs. Relativism, p. 9, who also refers to other bases, including ‘divine authority’ and ‘intuition’, which this chapter will not engage. John Locke, The Second Treatise on Civil Government (Amherst: Prometheus Books, 1986), p. 13. Ibid., p. 70. Ibid., p. 13. Ibid., p. 72. Ibid., p. 50. Ibid., p. 108. See also p. 109: ‘Wherever law ends, tyranny begins, if the law be transgressed to another’s harm.’

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Locke’s writings. Indeed, corruption was discussed at the Constitutional Convention more often than factions, violence or instability:  Madison recorded the term fifty-four times.58 Historian Bernard Bailyn observed that the very ‘heart of the revolutionary movement’ was the ‘fear of a comprehensive conspiracy against liberty … nourished in corruption’.59 Legal scholar Zephyr Teachout thus finds that the Constitution ‘carries within it an anti-corruption principle, much like the separation-of-powers principle, or federalism’.60 However, a distinctly Anglo-American intellectual tradition cannot provide the sole basis for a universal human right. Locke’s theory of natural rights, and the broader Western framework that rests upon it, is widely criticised for growing out of and reinforcing a uniquely Western worldview. Nowhere has that criticism been more pronounced than in East Asia, where the ‘Asian values’ critique of Western liberalism originates. That critique holds that Western ideas of rights fail to recognise distinctly Asian values, which emphasise family and community over the individual, value social harmony over personal freedom, and value a much higher level of deference to political leaders and institutions.61 Though Lockean thought may well be susceptible to this critique, natural law is not the only alternative basis for identifying the existence of a human right. Another basis is cross-cultural research that discovers fundamental values shared by all cultures, or ‘cross-cultural universals’.62 Though the term ‘rights’ may not appear in other languages or intellectual traditions, those traditions of political thought may contain their functional equivalent63 – fundamental principles of governance that ‘trump’ other policy considerations, the violation of which is a ‘grave affront to justice’. There may be no better place to start than that eminently non-Western political philosopher most closely associated with Asian values: Confucius. Though Confucius is an ancient figure, modern China is seeing a revival of Confucianism as the Chinese state gradually distances itself from Marxism. China’s proudly ancient intellectual traditions (and more modern Marxist legacy) would both seem to situate the country well outside the Western liberal paradigm. However, there is no value more fundamental to Confucian ideals of good government than the absence of corruption. The pervasiveness of corruption in sixth century bc China was among the chief sources of Confucius’ political thought.64 This state of affairs found some support in a political philosophy which taught that ‘virtue as a basis for the State was not practicable’, that the ‘State was not bound by ordinary moral rules’ and a state that attempted to achieve ethical ideals ‘would thereby only commit suicide’.65 Writing to counter this pernicious view, Confucius taught that the first requirement of good government is ‘the rule of virtue’. The government is thus subject to the same ethical rules that apply to individuals. The legitimate ruler does not separate ethics from politics, and the ends do 58 59

60 61

62 63 64 65

J. Savage, ‘Corruption and Virtue at the Constitutional Convention’ (1994) 56 The Journal of Politics 174 at 177. B. Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA; Belknap Press of Harvard University Press, 1992), p. xiii; Similarly, George Mason said at the Convention, ‘If we do not provide against corruption, our government will soon be at an end’: see ‘Notes of Robert Yates (23 June 1787)’, in M. Farrand (ed.), The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1966), vol. I, pp. 391–392. Z. Teachout, ‘The Anti-Corruption Principle’ (2009) 94 Cornell Law Review 341 at 342. See e.g. A. Sen, Human Rights and Asian Values (New  York:  Carnegie Council on Ethics and International Affairs, 1997). Renteln, Universalism vs. Relativism, p. 138. Ibid., p. 11 L. S. Hsu, The Political Philosophy of Confucianism (London: Curzon Press, 1975), pp. 24–25. Ibid., pp. 9–10.

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not justify the means.66 Indeed, the government’s example should be the starting point for the establishment of a harmonious and prosperous society; the ruler’s virtue was to ‘sweep over the people and transform them just as the wind blowing over long stalks of grass bends them as it passes’.67 Only a person of great virtue, then, could be qualified to become the ruler, the ‘Son of Heaven’; without virtue, he loses his legitimacy.68 Corruption was thus a fundamental, if not the most fundamental principle of good government. To Confucius, there could be no legitimate government without the absence of corruption. In contemporary Western parlance, the absence of corruption was a public policy trump; its presence a grave affront to justice. Another region of the world that possesses a proud, ancient and eminently non-Western intellectual tradition, and that has resisted the embrace of Western political values, is the Islamic Middle East.69 Islamic law is widely incorporated into civil law systems across the Middle East (and South Asia as well), and frames public policy discussions in a significant way.70 But like Confucianism, traditional Islamic law holds that among the most fundamental principles of governance, and the important functions of government, is to secure freedom from corruption. The term ‘Islamic law’ refers to the cumulative body of thought of numerous communities and schools, and its core is the concept of Sharia.71 Sharia means the ‘path to the watering place’, referring to the divine will and connoting a path of discipline and virtue.72 Based on the Qur’an as well as the traditions and teachings of Muhammad (sunnah), Sharia teaches that humankind is ‘entrusted with the responsibility to establish justice and good governance’.73 Islamic doctrine thus in the first instance seeks to cultivate self-discipline and morality, through such virtues as honesty (sidq) and the fulfilment of promises (wafa bi’l-’ahd) as well as the avoidance of lying (khidhb) and perfidy (radha’il).74 But Islamic jurists have taught that internal accountability must be supplanted by external checks and balances. Accordingly, Muslim jurists have historically taught that law must prohibit various forms of corruption, including the acceptance of gifts, embezzlement, compromising official duties in exchange for bribes or basing official decisions on family or tribal considerations.75 As one Muslim legal scholar laments, ‘unfortunately, Islamic standards and norms are not often appreciated by states in the Muslim world.’76 These states’ failures, however, have no bearing on whether corruption is rightly understood as a rights violation or its structural equivalent. Traditional Islamic thought, much like Confucian thought, recognises corruption as a violation of the most fundamental principles of good governance. Indeed, the disconnect between traditional jurisprudence and contemporary practice itself underscores the need to recognise that the right to freedom from corruption is held by all persons irrespective of what their governments may now do or say. 66 67 68 69

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Ibid., p. 111. R. Peerenboom, China’s Long March toward Rule of Law (Cambridge: Cambridge University Press, 2002), p. 32. Hsu, The Political Philosophy of Confucianism, p. 79. Even though the Association of Southeast Asian Nations created a subregional agreement (the Intergovernmental Commission on Human Rights), China is not a member. In the Middle East, the Arab League created the Arab Charter of Human Rights, but it has very few ratifications and no international court or active enforcement mechanism. M. A. Arafa, ‘Corruption and Bribery in Islamic Law: Are Islamic Ideals Being Met in Practice’ (2012) 18 Annual Survey of International Comparative Law 171 at 183. Ibid., 185. M. H. Kamali, Shari’ah Law: An Introduction (Oxford: Oneworld Publ., 2010), p. 14. Ibid., p. 14. Ibid., p. 29. Arafa, ‘Corruption and Bribery’, 106. Ibid., 127.

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40.7 An Example of Rights- Oriented Anti- Corruption Enforcement The enforcement action of 2002 that heralded the beginning of the modern enforcement era illustrates the potential of anti-bribery enforcement to focus on the victims of bribery. The action concerned James Giffen, a US attorney who bribed officials in Kazakhstan on behalf of US oil companies. In settling the case, the United States arranged with officials in Kazakhstan and Switzerland to release the US$80 million in alleged bribes from their Swiss accounts and establish a trust fund.77 That fund now finances a Kazakh NGO called the BOTA Foundation, whose purpose is to ‘improve the lives of children, youth and their families suffering from poverty in Kazakhstan through investment in their health, education, and social welfare’.78 BOTA has three specific programmes funded by the recovered bribes:  a conditional cash transfer programme, which gives funds directly to eligible poor families to increase access to health, education and social welfare services; a social services programme, which makes grants to local and international NGOs to promote early childhood development, special needs services, and benefits to orphans and other severely disadvantaged children; and a tuition assistance programme, which provides college and vocational education scholarships.79 The fund’s board of trustees includes several Kazakh academics and professionals, together with government representatives from the USA and Switzerland; it does not include any Kazakh government officials. The Giffen case is slightly different from what this chapter proposes: BOTA is funded with recovered bribes, not with criminal penalties. Still, it may be understood as setting an important, if underappreciated, precedent: the recognition that victims of bribery should and can be compensated through funding community organisations. These projects are not specifically focused on corruption. Nonetheless, they symbolise the capacity of anti-bribery enforcement, and anti-corruption enforcement generally, to finance projects that specifically benefit victims of corruption. But any such reorientation in anticorruption enforcement requires first acceding to the principle that enforcement should, in the first instance, benefit the victims. A rights framework can help to achieve this goal.

40.8 Critiques The argument of this chapter may invite either of two principal critiques. Both are important though, in this author’s view, neither is persuasive. The first is that the human rights approach to corruption is inherently a ‘domineering narrative’ about ‘the relationship between key international institutions and developing countries’. Connecting the two concepts reinforces ‘a particular economic account of development and, as such, cannot be understood as neutral’.80 By this account, introducing rights talk into the corruption discussion will actually cause more harm than good:  the language of human rights does not refocus our attention on improving the plight of victims of corruption, but rather perpetuates their victimisation.

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M. Steen, ‘Kazakh “Oil Bribe” Millions to Go to Poor Children’, Reuters, 4 May 2007, available at www.reuters.com/ article/idUSL04489030. See the homepage of the Bota Foundation at www.botafoundation.org/. www.botafoundation.org/. M. Goodwin and K. Rose-Sender, ‘Linking Corruption and Human Rights:  An Unwelcome Addition to the Development Discourse’, in M. Boersma and H. Nelen (eds.), Corruption and Human Rights:  Interdisciplinary Perspectives (Portland: Intersentia, 2010), p. 222.

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It is certainly true that many who believe both in human rights and in the anti-corruption effort also subscribe to liberalism generally. But as this chapter has endeavoured to show, treating freedom from corruption as a fundamental principle of government is by no means unique to liberalism. It is a transcendent political value, and to the extent it is now associated with liberal political thought, this may only be because liberalism dominates global political discourse. Profoundly non-liberal intellectual traditions embrace the anti-corruption principle as vigorously as any others; indeed, one will look in vain for a well-developed political philosophy that does not. The second critique may be more formidable. Though an anti-corruption norm is consistent with any system of political thought, framing the norm in rights terms may prove immediately divisive. By this account, the rights framework will invigorate anti-corruption efforts only in those states that are amenable to rights talk; in others, it may do the opposite. Even if it were true that most citizens would find their anti-corruption impulses strengthened by rights talk, governments may nonetheless find it polarising or, even worse, threatening. The polarising effect results from the decades of rights discourse involving alleged rights that are indeed ideologically divisive – the right to freedom of religion, or political representation, or procreative freedom. If the post-Second World War rights conversation had begun instead with corruption, rights talk might not now be so alienating. But by this critique, the well is already poisoned, and rights talk will only alienate many of the governments we most want to convince. Since the middle of the twentieth century, rights talk has won increasingly universal acceptance across diverse political and cultural traditions. Today a majority of nations, including China and various Islamic countries, have signed and/or ratified the major human rights treaties. Moreover, polls suggest broad-based cross-cultural support, including in East Asia and the Middle East, for the protection of basic human rights.81 Although these nations did not historically speak in terms of rights, they have come to recognise the congruence, in at least certain limited respects, of rights theory with their own fundamental principles of governance. While many asserted rights tend to accentuate differences in world-views, the right to be free from corruption does not. In such diverse traditions as Anglo-American liberalism, East Asian Confucianism and Middle Eastern Islamic law, freedom from corruption is deemed among the first principles of government. Indeed, of the various candidates for a universal moral principle, one that all persons have by virtue of being human, the freedom from corruption may well be the strongest and most fundamental.

40.9 Conclusion If a right has no formal legal recognition – no mention in a new or existing human rights treaty, and no adjudication by the International Court of Justice or the European Court of Human Rights or any other tribunal  – is it still a right? The supposed right to be free from official corruption begs this question. This chapter takes the unusual position of advocating for rights recognition at the conceptual and rhetorical levels. It leaves for another day the question of whether, in addition to the rhetorical power of a reframing of rights, the global anti-corruption movement would be strengthened by the formal recognition of such a right in positive law. Questions of which instruments might most naturally lend themselves to amendment, or how the law might be derived from already recognised rights, are beyond the scope of this inquiry. 81

See e.g. Nickel, ‘Human Rights’.

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But a right not yet recognised in positive law is no less a right; its present status as a concept should in no way deprive freedom from corruption of its status as a right. If rights are indeed what all people deserve by virtue of being human, they deserved them before the Universal Declaration of Human Rights or the Magna Carta or any other formal legal recognition. As this chapter has undertaken to show, freedom from corruption is this kind of right.

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41 Towards a Human Rights Approach to Corruption Kolawole Olaniyan

41.1 Introduction: Making Sense of Human Rights in the Field of Corruption Corruption is as old as humanity, but international recognition of its corrosive nature is relatively recent. The fight against corruption is now an important aspect of contemporary international law. The last three decades have witnessed steady and even remarkable advances in recognising corruption as an international problem that precipitates poverty and threatens both the rule of law and the foundation of a law-based state. An impressive array of international conventions, declarations, guidelines, national laws and institutions exist to combat corruption and to establish a framework for international cooperation and assistance. Intergovernmental organisations are constantly engaging in the fight against corruption and are issuing recommendations, directives and codes of conduct, or more significantly, drafting legally binding international conventions. These commitments have naturally created a desire by states to address corruption within their jurisdiction, and in other territories. Furthermore, various non-state actors, such as civil society organisations, continue to insist on accountability for the crime of corruption and the need to sensitise people to its destructive effects. The proliferation of criminal law instruments against corruption shows the importance the international community has consistently attached to them to end the problem. Despite several years of such universal consensus, cooperation and apparent belief in the ability and effectiveness of legal rules and institutions to fight corruption, it continues to flourish, with deleterious effects on human rights of the most economically and socially disadvantaged. This has spawned greater attention to the debates about the relationship between corruption and human rights. Notably, former UN Secretary-General the late Kofi Annan aptly captured the growing international community’s concern with corruption and its negative impact on human rights during the 2003 adoption by the General Assembly of the United Nations Convention against Corruption (UNCAC) including that corruption ‘has a wide range of corrosive effects on societies; undermines democracy and the rule of law; leads to violations of human rights; erodes the quality of life, and allows organized crime, terrorism and other threats to human security to flourish; hurts the poor disproportionately by diverting funds intended for development, and undermines a state’s ability to provide basic services’.1 It is now common to see human rights

1

Secretary-General Lauds Adoption by General Assembly of United Nations Convention against Corruption, 31 October 2003, UN Doc. SG/SM/8977, GA/10200, SOC/CP/271.

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institutions mentioning ‘corruption’ in their work or making a case for it to be considered a human rights issue.2 Even then, the relationship between corruption and human rights remains the least studied question in the field of international law.3 The two concepts are still largely considered discrete and, as such, are treated separately in legislation, treaties and the literature. Human rights law does not explicitly prohibit corruption, human rights institutions and tribunals rarely apply rigorous human rights analysis to the problem, and human rights defenders and anti-corruption activists rarely engage or work together on issues of common interest.4 Several questions arise: can criminal law instruments against corruption provide an adequate remedy and satisfactory sense of justice for victims? If criminal law instruments against corruption are considered ineffective and unsatisfactory, is there any role that human rights law can play to address any deficiencies? What strategies and methods can human rights law usefully pursue to achieve this objective? In other words, are existing human rights law frameworks sufficient to develop the right to freedom from corruption? Or do we need an independent, free-standing human right against corruption to achieve the objective? My colleague Andrew Spalding, Professor at University of Richmond School of Law, proposes some answers in his chapter in this volume,5 particularly in advocating a conceptual and rhetorical reframing of corruption. According to him, the lack of recognition of corruption as an independent, free-standing human rights violation might be remedied by a ‘conceptual and rhetorical reframing of corruption’. And it is achieving results: ‘there are benefits in reframing corruption as a free-standing rights violation.’ ‘A rights-based framework can redirect our enforcement initiatives toward improving the conditions in which the victims of bribery live.’6 I find Andrew’s analysis a helpful contribution to the debates on how to frame corruption as a violation of human rights. In the context of seeming doubts in some quarters as to the utility of the human rights framework for preventing and combating corruption, Andrew’s chapter provides strong support for the proposition that corruption is indeed a violation of human rights. I  agree with Andrew that a human rights approach to corruption has significant advantages, especially as it gets right at the vexed issue of the relationship between society and law, justice and the need to consider the perspective of ‘victims’ in the global fight against corruption. We both agree that there are some benefits in expanding the legal instruments in the fight against corruption beyond the traditional criminal law enforcement approach to include recognising corruption for what it is: a grave human rights violation.

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For example, the UN Human Rights Council, at its 23rd Session, in March 2013 organised a panel discussion on the negative impact of corruption on the enjoyment of human rights (and commissioned a study on the matter). On the other hand, literature on corruption generally (and its effects on socio-economic and political development) has flourished over the years. The text of this introduction is borrowed from K. Olaniyan, Corruption and Human Rights Law in Africa (Oxford:  Hart, 2014), Introduction. The relatively recent history of the international anticorruption movement may account for the discrete treatment of the two concepts of human rights and corruption. While human rights law emerged following the Second World War, the anticorruption movement grew out of the 1977 events of the Watergate scandal in the United States. Furthermore, several years after the development and expansion of human rights law as a fundamental aim of modern international law, the use of the word corruption was still considered taboo. While human rights law has diluted the concept of state sovereignty to the point that a state’s treatment of its own citizens is no longer considered a matter only of domestic concern, combating corruption is generally seen as an improper intrusion into the domestic affairs of sovereign states. See generally, Olaniyan, Corruption and Human Rights Law in Africa; D. Shelton, Remedies in International Human Rights Law, 2nd ed. (Oxford: Oxford University Press, 2005). A. Spalding, in this volume, pp. 517ff. Ibid., at p. 519.

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Andrew, however, seems satisfied that ‘a conceptual and rhetorical reframing of corruption’,7 and not the amendment of existing treaties or even ratification of new ones, is the way forward. He also does not see any benefit in pursuing litigation before human rights tribunals.

41.2 Human Rights to Freedom from Corruption: The Existing Human Rights Framework vs an Independent, Free- Standing Human Right 41.2.1 Overview of Andrew Spalding’s Chapter Andrew Spalding’s chapter is extremely relevant and interesting, because it contributes to the debates on how to address the relationship between corruption and human rights. Andrew joins some commentators, such as Raj Kumar,8 who have proposed the establishment of a new human right to be free from corruption. However, it is unclear how any such new right would operate coherently alongside existing human rights frameworks. His stated objective is to explore whether consideration of corruption as a violation of a free-standing human right would strengthen the global anti-corruption movement. He explains that there are benefits in reframing corruption as a violation of a free-standing right, arguing that such an approach would redirect enforcement initiatives towards improving the conditions in which victims of bribery live. He suggests that a human rights approach to corruption must move beyond what he calls ‘the means framework’ (that is, viewing corruption as contributing to violations of human rights) to an inherent right to freedom from corruption. For his thesis, he relies mostly on the notions of ‘cross-cultural universals’ and natural law theories, suggesting John Locke’s notion of the right to liberty is ‘actually just another name for the right to be free of corruption’.9 However, Andrew focuses mostly on foreign bribery in his examples, thus reflecting a narrow notion of corruption.10 Although bribery is the most well-known form of corruption, it is not the only one. While there is no universal definition of corruption, the UNCAC, which is the most comprehensive international treaty on the subject, classifies corruption as: bribery, illicit enrichment, embezzlement, trading in influence and abuse of office. Relatedly, it is unclear how other types of corruption would be covered in Andrew’s analysis; for example, would it be limited to grand corruption? Or would it cover cases of both grand and petty corruption? In other words, would Andrew’s notion of a free-standing human right to freedom from corruption be adaptable to all forms of corruption? Or is petty corruption considered harmless and victimless, and is therefore excluded? 41.2.2 Existing Human Rights Framework vs an Independent, Free-Standing Human Right 41.2.2.1 A Protocol Recognising Corruption as Violation of Human Rights? States may choose to ignore an independent, free-standing right to freedom from corruption or dilute its content to the extent of making the right more rhetorical than real, as they are less likely to be constrained by explicit treaty obligations requiring them to respect, protect, promote and fulfil freedom from corruption, particularly in ensuring effective remedies to victims.

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Ibid., p. 517. See C. R. Kumar, Corruption and Human Rights in India:  Comparative Perspectives on Transparency and Good Governance (Oxford: Oxford University Press, 2011). Spalding, in this volume, pp. 525f. Although he mentioned forms of corruption to include embezzlement, he did not go further to explain how these corrupt conducts relate to international bribery, which he considers to be ‘the most impactful and controversial’.

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As noted, human rights law neither explicitly refers to corruption nor prohibits it. It is true that the dynamic and evolutionary interpretation rule is a proper part of judicial or interpretative duties, obviously has its benefits and is strongly encouraged. However, the extent to which the considerable potential of human rights is enhanced and realised for tackling corruption will be determined not by ascribing to it ‘a thousand and one interpretations’, but by the development of a new instrument in the form of a protocol to existing human rights treaties, preferably the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) (mainly because of the comprehensive coverage in these treaties of all categories of human rights and their near-universal reach and acceptance), that would explicitly recognise corruption as a violation of the rights contained in these treaties, and thereby complementing the treaties’ provisions and giving them their full effect. In terms of substantive content, this proposed protocol would ideally allow for better integration of human rights and criminal law instruments, grant explicit standing to victims (and non-governmental organisations (NGOs) or other interested parties) to approach human rights bodies and tribunals as well as national courts for remedies, demonstrate states’ intention to take their human rights obligations and anti-corruption obligations and commitments seriously, and thus effectively contribute to the goal of a comprehensive and multidisciplinary approach to fighting corruption. This mechanism would enhance the credibility of criminal law instruments against corruption and human rights law by improving the prospect that a state will be held to account for breach of its treaty obligations. It may also restrict states’ sovereignty, which currently allows states to resist compliance with anti-corruption instruments. However, detailed rules of procedure would need to be established to determine issues such as admissibility criteria for potential complaints. Furthermore, the proposed protocol would include, among other things, provisions on the responsibility of financial institutions acting as havens for stolen funds, and principles that address the human rights dimension of corruption. A  protocol to both the ICCPR and the ICESCR, or even the UNCAC, does not require reinventing the wheel and would avoid the necessity of needing to persuade states to embrace an independent, free-standing human right against corruption, and to create an acceptable enforcement mechanism. The human rights obligations of the two international covenants have already been negotiated and their implementation mechanisms established, and the UNCAC has very strong provision in Article 35 on victims’ rights. Such an initiative would save time and resources and would not require separate structures and institutions. Although current human rights implementation mechanisms may be less than optimal, they nonetheless offer the fundamental utility of the covenants themselves, which are the best options for the creation of a universal human rights framework to tackle corruption. Indeed, these treaties offer established mechanisms by which to enforce, monitor and file complaints, and to report on states’ efforts to eliminate human rights violations arising from acts of corruption. At the domestic level, national courts and national human rights commissions, which exist in many countries, can play important roles in securing the enforcement of the proposed protocol. However, victims of human rights violations may be reluctant to bring complaints out of fear of possible reprisals by various state authorities. Therefore, it is important for NGOs and national human rights commissions to encourage the establishment of mechanisms that protect complainants against any retaliation. They should also educate victims about any procedures and assist them in filling in and submitting complaints. However, given the general lack of interest of NGOs within the UN human rights mechanisms in the issue of corruption, and their

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lack of capacity to consider this from a human rights viewpoint, it is important for these groups and their funders and supporters to devote their own resources to improving their interest and work in this important field. Most of the countries that provide safe havens for stolen funds are already members of the ICCPR, the ICESCR and the UNCAC. States parties to the ICCPR and the ICESCR are required to provide international cooperation and assistance in the fulfilment of human rights. Therefore, a protocol in this field would provide the necessary level of coordination and harmonisation with important players from developing countries (that are mostly the victims of corruption), and would ensure that the resources, technical ability and technology of Western countries contribute much-needed support to fighting corruption. The idea of an international agreement to provide effective remedies to victims is not a revolutionary one. W. Michael Reisman proposed the drafting of an international declaration that would: (1) characterise acts of corruption (what he called ‘spoliation’) by national officials as a breach of national trust and international law; (2) impose on other governments an obligation of supplying information and cooperation; and (3) characterise the failure of other governments to prevent such funds from being cached in their jurisdiction and to aid in their recapture as complicity, after the fact, and itself an international delict.11 Reisman also suggested that the United Nations should consider forming an international high commission for the retrieval of diverted national wealth. According to Reisman, the commission would be charged with responding to the requests of member governments to identify the location of purloined funds and to secure their return by negotiation or, where appropriate, by judicial action. The statute of the agency would grant it international legal personality and authorise it to cover its reasonable expenses from the funds regained. While major anti-corruption treaties already contain provisions requiring governments to share information and cooperate and assist one another, most of the elements of Reisman’s sensible proposal remain outstanding because they were not satisfactorily implemented at the time of the adoption of the UNCAC or human rights treaties. However, I would argue that Reisman’s proposal should be implemented by way of a legally binding protocol to the ICCPR/ICESCR/ UNCAC (and not a declaration as he has suggested), as this would be a major tool in addressing the problem of corruption and its effects on human rights globally. One major challenge to the implementation of the idea of a protocol may be the lack of political will, especially given the slow pace of the development of the anti-corruption movement and the reluctance of the international community to go the extra mile regarding corruption, despite recognising it as a serious problem. Other challenges may include the notorious principle of sovereignty associated with the fight against corruption; difficulties of obtaining agreement on the elements of corruption as a violation of human rights; little appetite for additional normative standards, not least on the controversial issue of corruption; and the obstacles of privileges and immunities. Therefore, civil society and international NGOs such as Transparency International and Amnesty International would need to pull their weight and use their influence, global membership and networks to mobilise the international community, particularly powerful Western countries, if the idea of a global protocol is to become a reality. 11

W. M. Reisman, ‘Harnessing International Law to Restrain and Recapture Indigenous Spoliation’ (1989) 3 American Journal of International Law 57.

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Even so, corruption can only be effectively and satisfactorily combated through a combination of approaches and strategies in the short, medium and long terms. But given the serious harms that corruption has already caused (and continues to cause), it is clear that complementary legal, policy and other initiatives to address the problem and its effects on human rights should not be postponed or put aside indefinitely. The complementary initiatives suggested below would help to advance a human rights approach to corruption, pending the time the international community musters sufficient political will to back the proposed protocol to the ICCPR/ICESCR/UNCAC that would establish within these treaties a right to freedom from corruption. 41.2.2.2 Trust Funds for Victims of Corruption The notion of trust funds for victims of human rights violations is a well-established mechanism in international law and relations, such as under Article 75 of the Rome Statute of the International Criminal Court (ICC)12 (which creates a fund for the benefit of victims of international crimes and their families, the assets of which may originate from money or property collected through fines or forfeiture imposed by the ICC on the individual perpetrator). It is thus ‘necessary that, in addition to individual means of reparation, adequate provision be made to entitle groups of victims or victimized communities to present collective claims for damages and to receive collective reparation accordingly’. This novel mechanism to protect victims’ rights indicates a willingness by the world nations to adopt innovative responses to serious challenges and has contributed to the efforts to advance the international law of reparations. The idea of trust funds is also frequently adopted in mass claims programmes (such the Iran– United States Claims Tribunal of 1981)  to provide ‘effective remedies for numerous individuals who suffered losses, damage or injuries as a result of an armed conflict or a similar event causing widespread damage’.13 Existence of armed conflict is not a requirement for mass claims, as ‘similar types of claims would arise from environmental disasters, causing widespread damage or injury, or from systematic human rights violations in peacetime’.14 The goal is presumably to achieve ‘practical justice: that is, a justice that would be swift and efficient, yet not rough’.15 Mass claims cases cover the same kinds of issues (e.g. serious human rights violations) as are seen in the adverse effects of corruption on human rights, and are therefore a tool that can be used to address serious violations of human rights caused by corruption. If it is agreed that corruption violates human rights, then it seems sensible, legitimate and appropriate for states to replicate the mass claims principles and work towards establishing their own trust funds (as an essential element of remedial justice) for victims of human rights violations that stem from corruption. The clear links between corruption and violations of human rights demonstrate the need for effective remedies for victims nationally, regionally and internationally. By establishing the trust fund, states will also be signalling that victims will no longer be marginalised in the fight against corruption. The establishment of a trust fund for victims of corruption16 is also justified on the 12 13

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United Nations Statute of the International Criminal Court, Rome, 17 July 1998, in force 1 July 2002, 2187 UNTS 90. See H. Das, ‘The Concept of Mass Claims and the Specificity of Mass Claims Resolution’, in The International Bureau of the Permanent Court of Arbitration (ed.), Redressing Injustices through Mass Claims Processes: Innovative Responses to Unique Challenges (Oxford: Oxford University Press, 2005), p. 5. Ibid., pp. 8–9. Ibid., p. 10. The victims of corruption may be individuals or society: for example, assuming a judge accepts a bribe to rule against a defendant in a legal action. This would ordinarily amount to a crime of corruption (i.e. bribery). The victim of corruption in this instance is the defendant whose right to a fair hearing may have been violated because of the bribe. The defendant should be able to approach the court to seek enforcement of her/his human rights under human rights law. This would of course be in addition to the criminal prosecution of the judge for the crime of corruption,

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grounds of fairness because not all cases of violations of human rights stemming from corruption can reach the court, which will mean that only some victims will receive compensation without such trust funds. While class action may be taken on behalf of victims, it will not be sufficient alone, given the magnitude of the problem and the logistical and other challenges that such action often encounters. Furthermore, each trust fund should be established initially on the domestic level and then replicated and expanded to cover regional and international levels. Part of the funds should be used to establish victim assistance programmes to ensure the victims’ perspective is fully integrated into the fight against corruption. The funds can be built and sustained through seized and repatriated stolen money, fines and forfeiture proceeds of recovered wealth in key portfolios, together with support from international development agencies and other relevant institutions. Drawing trust funds for victims mainly from fines imposed on corrupt officials is fully justified, given that grand corruption inevitably causes loss and suffering to the economically and socially vulnerable. Thus, a ‘victim of crime report’ by the UN stated: ‘[I]f it is uncertain whether the budgetary means of the State will be sufficient to cover an unknown number of claimants, a fund should be established to limit the financial burden’.17 Given the limited resources available, fines should be imposed on corrupt officials, and such fines should be set aside as an endowment for the trust funds. To prioritise areas of development, states also need to establish truth commissions regarding the costs and impact of corruption on communities and citizens. Of course, it is desirable for states to consider taking any other necessary measures to mitigate the effects of corruption on victims. Increasingly, and in a myriad of ways, civil society, including international and national NGOs, are positively pushing the boundaries of international law to achieve effective remedies for victims of human rights violations. In furtherance of this tradition (and given their expertise, experiences and links to victims and their families), they can play various meaningful roles such as demanding the establishment of trust funds for the victims of corruption and contributing to the modalities and implementation of these trust funds.

41.3 Conclusion: Benefits of a Clear, Unambiguous and Identifiable Freedom from Corruption Any initiative to develop a right to freedom from corruption is best developed within the existing human rights framework rather than as an entirely separate, new, independent, free-standing human right. While Andrew and I  agree that the anti-corruption movement would benefit immensely from corruption being viewed as a violation of human rights, we differ in terms of the means to achieve this objective. Andrew seems to prefer an implied and somewhat elusive freedom from corruption, given that his core argument is based on the utility of natural law theories and doctrines to establish this freedom. However, to nail the problem, I have proposed in

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which will be based on relevant and admissible evidence. The idea of social damage is one example of how a state has addressed the harm done by corruption to society, as was the case in Costa Rica where the government sought and obtained compensation of US$10 million in settlement for the social damage and loss of prestige suffered by the country because of a bribe paid by Alcatel, a telecommunications company. See UNGA, Resolution 60/147 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Survivors of Violations of International Human Rights and Humanitarian Law, 21 March 2006, UN Doc. A/RES/60/147, at 8. Victims of Crimes: Working Paper prepared by the Secretariat, 7th United Nations Congress on the Prevention of Crimes and the Treatment of Offenders, 26 August–6 September 1985, UN Doc. A/CONF.121/6, at 39.

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this chapter a protocol to existing human rights treaties to establish a clear, unambiguous and identifiable freedom from corruption in the long term. Natural law seems to be the least suitable option when articulating the content and form of a right to freedom from corruption to fill the vacuum surrounding the discourse of the relationship between corruption and human rights law, and it might add little to strengthening either the global anti-corruption movement or the human rights movement. Implied human rights based on natural law theories are not those with which courts deal routinely, and courts generally are not used to applying controversial rights to render justice and effective remedies in individual cases. The essence of human rights is that they are enforced and enjoyed in real situations by real people; otherwise, human rights will be ineffective. It is no accident that the traditional, most acceptable and more predictable methods of developing human rights on the international front are treaties and declarations, and on the national front, legislation. Human rights established by treaty are less controversial, though they are not beyond question. Nonetheless, important matters such as the development of a human rights norm against corruption should not be left to the haphazard and unaccountable growth of natural law, with its inchoate notions of justice and fairness. In terms of justiciability, enforcement and securing effective remedies to victims, it is difficult to discern what the normative value of a free-standing right against corruption amounts to. There are indeed good reasons to encourage the enhancement and greater use of existing human rights law to combat corruption, rather than pursuing the development of a new, independent and free-standing human right against corruption. The main task in achieving human rights is not so much in identifying what these rights are, but in the actual respect for and observance of the rights and effective remedies for victims in cases of violations. The framework for the application of human rights law to combat corruption already exists in the form of human rights treaties, declarations and guidelines, although only implicitly. Of course, the rigorous and progressive interpretation of these instruments by national, regional and global human rights institutions and courts, and where appropriate national human rights commissions, can help to accomplish the goal which Andrew seeks to achieve. Nonetheless, to effectively operationalise the existing framework, it is crucial to establish more specific normative frameworks that explicitly recognise corruption as a violation of human rights in the ICCPR/ICESCR/UNCAC and grant legal standing to victims and the concerned public. The ICCPR and the ICESCR have been considerably developed and interpreted, so much so that today an impressive body of case law and jurisprudence exists on the meanings, contents, scope and application of the human rights they guarantee. Given the inherent limitations of litigation or a strict legal approach to problems generally, other preventive functions of human rights law, such as helping to modify the legal system to establish a law-based society, and entrenching an enforceable right of access to information to provide early warning, which could expose potential cases of corruption before they take place, ought to be fully explored and utilised. Furthermore, both the human rights movement and the anti-corruption movement would need to improve their collaboration, and strive to deploy existing human rights law to enhance the global fight against corruption and improve access for victims of corruption to justice and effective remedies through such strategies as amendment of existing human rights treaties, public interest litigation, advocacy, legal advice and establishment of trust funds for victims.

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42 Bentham Redux Examining a Right of Access to Law Simon Rice

In this chapter I examine claims that the idea of ‘access to law’ should be accepted as a human right.1 I identify law’s pervasive presence in people’s lives, and argue that a person’s ability to comply with law’s direction, and to make use of law’s facilitative function, depends on their knowing and understanding the law. This, I argue, is a matter of human dignity, and calls for recognition of a wholly new right of access to law. I consider what the normative content of such a right might be, looking at how a state would meet obligations to ensure that law can be found, understood and readily complied with or used. I note, too, the risk of ‘rights inflation’, but argue for the genuine novelty of the proposed right. Alternatively, I consider how a right of access to law could be derived as an auxiliary right that is necessary for ensuring enjoyment of a range of substantive human rights, but I note that the resulting coverage is less than that of a stand-alone human right.

42.1 A New Right of Access to Law The widely used term ‘access to justice’ is commonly, in substance, a claim to a right to advice and representation in legal proceedings: a right to ‘legal aid’.2 An argument for such a right can be made within the established framework of international human rights,3 although it is often sourced as well to a constitution4 and, indirectly, the common law.5 The right is usually said to arise in criminal matters, but at times it can also occur in non-criminal matters.6 1 2 3

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For an earlier, more detailed exposition of this thesis, see https://ssrn.com/abstract=3072054. See e.g. K. Jüriloo, ‘Free Legal Aid – A Human Right’ (2015) 33 Nordic Journal of Human Rights 203. S. Rice, ‘Reasoning a Human Right to Legal Aid’, in A. Flynn and J. Hodgson (eds.), Access to Justice and Legal Aid: Comparative Perspectives on Unmet Legal Need (Oxford and Portland: Hart Publishing, 2017), p. 195. For example, in the USA: US Supreme Court, Gideon v. Wainwright 372 U.S. 335 (1963); US Supreme Court, Lassiter v.  Department of Social Services 452 U.S. 18 (1981), and see e.g. D. J. Dreyer, ‘Déjà Vu All Over Again: Turner v. Rogers and the Civil Right to Counsel’ (2013) 61 Drake Law Review 640; J. D. Kelley, ‘Gideon’s Bullhorn: Sounding a Louder, Clearer Call for a Civil Right to Counsel’ (2013) 4 Sanford Journal of Public Policy 87; in India: Supreme Court of India, Hussainara Khatun and Others v. Home Secretary, State of Bihar 1979 SCR (3) 532, and see A. Higgins, ‘Legal Aid and Access to Justice in England and India’ (2014) 26 National Law School of India Review 13 at 19–21. See e.g, A. Flynn et al., ‘Legal Aid and Access to Legal Representation: Redefining the Right to a Fair Trial’ (2016) 40 Melbourne University Law Review 207; F. Gibson, ‘A Decade after Dietrich’ (2003) 41 Law Society Journal 52; P. A. Fairall, ‘The Right Not to Be Tried Unfairly without Counsel: Dietrich v The Queen’ (1992) 22 University of Western Australia Law Review 396; in the UK see House of Lords, House of Commons and Joint Committee on Human Rights, Seventh Report of Session 2013–14: The implications for access to justice of the Government’s proposals to reform legal aid, December 2013, paras. 29–31. Rice, ‘Reasoning a Human Right to Legal Aid’, pp. 199–202.

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There has been considerably less scholarly focus on rights relating to an individual’s engagement with state law outside the trial context, perhaps because in daily life – differently from a trial – it is not obvious that there is a contest between state power and the individual, or that the individual is at risk from the operation of law. But the relationship between state law and the individual has two features that are pervasive in people’s lives: regulation and control, by which law directs and constrains conduct and limits opportunities, and facilitation, by which law enables conduct and creates opportunities. The first feature of law – regulation and control – means that at all times a person’s acts or omissions are subject to direction and risk legal sanction. Law’s direction may be, for example, not to falsely advertise, to vacate leased premises in good order or to exercise care while driving. The associated sanctions may not be punitive in nature – which would lead back to the more familiar territory of the trial – but may be, for example, strict liability (such as the imposition of a fine), administrative (such as loss of driving licence), disabling (such as exclusion from opportunity), invalidating (such as avoiding a contract) and preventive (such as banning from entry). The second feature of law – facilitation – means that a person may engage law to advance and realise their plans and aspirations. Law’s machinery may be, for example, protective (such as copyright), enabling (such as incorporation), remedial (such as access to compensation), enriching (such as licensing), supportive (such as social security payments), protective (such as domestic violence orders) and liberating (such as equality measures). It is apparent that law has a strong and persistent presence in ordinary daily life. But a person’s ability to comply with law’s direction, and so avoid the associated sanctions, depends on their knowing and understanding the law they have to comply with. Similarly, a person’s ability to make use of law’s facilitative function, and so gain the benefits and protections that law offers, depends on their knowing and understanding the law they could be making use of. Absent knowledge and understanding, a person is both vulnerable to and unassisted by the law.7 This suggests the importance of access to law to human dignity. 42.1.1 Dignity The dignitarian basis for human rights, although contested,8 is very widely accepted.9 It is ‘commonplace in new international human rights and humanitarian law instruments’,10 and was ‘the central organising principle’ of the 1993 Vienna World Conference on Human Rights, which in turn adopted it as ‘foundational … to human rights in general’.11 7

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S. Gomes, ‘Access to Law and Justice Perceived by Foreign and Roma Prisoners’ (2017) Race and Justice, 359 at 360, citing J. Pedroso, J. P. Dias, C. and Trincão, O Acesso ao Direito e à Justiça: um direito fundamental em questão, Observatório permanente da justice portuguesa, dentro de estudos sociais, faculdade de economia universidade de Coimbra, July 2002; and see United Nations Development Program, Access to Justice: Practice Note, 3 September 2004, 12. E. Grant, ‘Dignity and Equality’ (2007) 7 Human Rights Law Review 299 at 301, citing C. Albertyn and B. Goldblatt, ‘Facing the Challenge of Transformation:  Difficulties in the Development of an Indigenous Jurisprudence of Equality’ (1998) 14 South African Journal on Human Rights 248 at 257–258 and 272; E. Grabham, ‘Law v Canada: New Directions for Equality under the Canadian Charter?’ (2002) 22 Oxford Journal of Legal Studies 641 at 653; C. D. Bredt and A. M. Dodek, ‘Breaking the Law’s Grip on Equality: A New Paradigm for Section 15’ (2003) 20 Supreme Court Law Review 33 at 46; D. M. Davis, ‘Equality: The Majesty of Legoland Jurisprudence’ (1999) 116 South African Law Journal 398 at 413; D. Feldman, ‘Human Dignity as a Legal Value – Part 1’ (1999) Public Law 682 at 697. See e.g. C. McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 European Journal of International Law 655; see also the survey of dignity and human rights in J. Nolan, A. McBeth and S. Rice, International Law of Human Rights, 2nd ed. (Oxford: Oxford University Press, 2017), pp. 52–62. McCrudden, ‘Human Dignity’, 668. Ibid., 670.

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The characterisation of an aspect of human life as an issue of human dignity is essentially a matter of conviction and acceptance. Consensus and practice have established to a very high level of acceptance that the matters addressed in the Universal Declaration of Human Rights, and detailed in subsequent treaties, are aspects of human life that are issues of human dignity. But beyond those matters, a case must be made for each ‘new’ human right, starting with its claim to be a matter of human dignity. It is strongly arguable that it is a matter of human dignity to be able to comply with law’s direction and so to avoid the associated sanctions, and to be able to make use of law’s facilitative function and so to gain the benefits and protections that law offers.12 It seems to be universally the case that without knowledge and understanding of law’s strictures and opportunities, a person’s capacity for independent and informed choice and for realising her human potential is limited, if not at times negated, suggesting Kafka’s extreme conception of law as ‘an unfathomable, ungraspable deity, a dark god emitting obscure oracular signs, but one can never figure out its location, purpose, logic or meaning’.13 My thesis is that a person cannot live with dignity, exercising reason and conscience, if she does not know the law, cannot comply with the law and cannot use the law. Just as a person must be able, for example, to express herself, to associate with others and to have access to education, so must a person know, and be able to abide by and use, the rules of her society. A person cannot be human with dignity if, through ignorance of the law, she faces censure and sanction; if, through inability to use the law, she faces loss and damage; if, through confusion about the law, she loses opportunity. Thus, the state’s failure to ensure access to and understanding of its laws does indeed engage human dignity, an essential element of a human right. 42.1.2 Rights Inflation? Before exploring in detail the normative content of a new right of access to law, I anticipate an argument that such an exercise could be seen as ‘rights inflation’,14 a pejorative term ‘referring to the increasing protection of relatively trivial interests as (prima facie) rights’.15 It is certainly the case that a new right of access to law would increase by one the number of discrete human rights posited in the Universal Declaration of Human Rights and UN covenants and conventions, but that is not necessarily rights inflation in the pejorative sense. Whether the addition of a new right is a ‘good’ or ‘bad’ thing turns on one’s view as to what properly founds a human right, having regard to ‘the possible bases’ for a human right16 and to some boundaries that maintain a connection with the central identity of human rights such as,

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Compare L. Mitee, who makes a similar case for a human right of ‘public access to legal information’ based only on law that ‘regulates conduct and activity’, and not also on law that is enabling: L. Ebeneezer Mitee, ‘The Right of Public Access to Legal Information: A Proposal for its Universal Recognition as a Human Right’ (2017) 18 German Law Journal 1429 at 1460. M. Dolar, ‘Kafka’s Voices’, in S. Žižek (ed.), Lacan: The Silent Partners (London: Verso, 2016), p. 312. See e.g. F. Urbina, A Critique of Proportionality and Balancing (Cambridge: Cambridge University Press, 2017), pp. 239–244. K. Möller, The Global Model of Constitutional Rights (Oxford: Oxford University Press, 2012), p. 3; see also G. Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford: Oxford University Press, 2007), p. 126; A. Gewirth, The Community of Rights (Chicago: University of Chicago Press, 1996), pp. 101–103; M. Ignatieff, Human Rights as Politics and Idolatry (Princeton: Princeton University Press, 2001), p. 90; U. Baxi, ‘Too Many, or Too Few, Human Rights?’ (2001) 1 Human Rights Law Review 1 at 5. E. Fiechter-Widemann, The Human Right to Water: Justice … or Sham? The Legal, Philosophical, and Theological Background of the New Human Right to Water (Eugene: Wimpf and Stock Publishers, 2017), pp. 83–84.

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for example, ‘human nature, human need, or human capability’,17 or, as I discuss above, the idea of human dignity. If, by reference to such criteria, a ‘new’ human right of access to law is, in Ignatieff’s terms, ‘strictly necessary to the enjoyment of any life whatever’,18 then the proposed right is not merely the conversion of a human desire, need or want into a human right – ‘rights inflation’ – but has a genuine claim to be recognised as a human right. I argue above that being able to know the law is more than merely a desire; it is necessary for compliance with law’s direction and the use of law’s facilitative function. Although, as I  discuss below, an existing human right can be interpreted so as to require access to law, there are circumstances where no existing human right is engaged but where a right of access to law is called for. The argument for a right of access to law is founded on the pervasiveness of law in social life, not merely in circumstances where an established human right is engaged. This suggests that a right of access to law must be conceptualised as a freestanding right. The ‘strict necessity’ of a wholly new right can be illustrated by the consequences of the state’s failing to ensure that there is effective access to a new or amended law. In the case of Ostrowski v Palmer, for example,19 Mr Palmer, a commercial fisher, was provided by the state with inadequate information about where he was entitled to fish. He fished in an unauthorised zone, and was prosecuted and convicted. As the High Court of Australia observed, Mr Palmer was subjected by this misinformation to ‘distress and opprobrium’, ‘the imposition of harsh mandatory penalties’ and ‘mindless oppression’. Only if the state had complied with a substantive right of access to law could Mr Palmer have been saved this indignity.20 42.1.3 The Normative Content of a New Right of Access to Law A response to this dignitarian imperative is to require the state to ensure that people can be aware of its law when they need to be. This ‘right of access to law’ is a person’s right to sufficiently know and understand the law that affects them – what Mommers calls the ‘epistemic dimension of the right of access’21 – so that a person is able to both comply with and make use of law. The normative content of such a right is for the state to ensure that the law – its law – can, first, be readily found; second, be readily understood; and third, be readily complied with or used by those who are subject to it. The ‘law’ in question is, at the very least, the posited law of the state, in the form of legislation, regulation, executive decrees and orders, and so on.22 Beyond these, a much wider range of posited, state-sanctioned instruments comprise ‘law’, including industry standards and codes of 17

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W. Moka-Mubelo, Reconciling Law and Morality in Human Rights Discourse: Beyond the Habermasian Account of Human Rights (Cham: Springer, 2016), p. 39. Ignatieff, Human Rights as Politics and Idolatry, p. 90. High Court of Australia, Ostrowski v. Palmer [2004] HCA 30; 218 CLR 493. Situations such as this illustrate the implications of the maxim ignorantia juris non excusat – ignorance of the law is no excuse; see e.g. K. Amirthalingam, ‘Ignorance of Law, Criminal Culpability and Moral Innocence: Striking a Balance between Blame and Excuse’ (2002) 2 Singapore Journal of Legal Studies 302; D. Elliott, ‘Access to Statute Law in New Zealand’ (1990) 20 Victoria University Wellington Law Review 131. For reliance on the maxim in an argument for a human right of ‘public access to legal information’, see Mitee, ‘The Right of Public Access to Legal Information’, 1463–1466. L. Mommers, ‘Access to Law in Europe’, in S. van der Hof and M. M. Groothuis (eds.), Innovating Government: Normative, Policy and Technological Dimensions of Modern Government (The Hague: TMC Asser Press, 2011), p. at 395. Mitee’s case for a human right of ‘public access to legal information’ seems limited to this positivist conception of what constitutes ‘law’: Mitee, ‘The Right of Public Access to Legal Information’, 1437–1438; despite noting the importance of, at least, case law, at 1449.

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practice; guidelines, principles and policies; and covenants and agreements.23 But ‘[t]he law is not a discrete set of written rules that can be read and mechanically applied’.24 There are times, for example, when legislation is deliberately not precise, drafted at a level of principle that allows sufficient flexibility for it to be applicable in different circumstances at different times;25 at such times, ‘[i]nterpretation of its wording is often needed before it can be applied, and the rules that lie at the core of legislation frequently incorporate elements that can only be ascertained by going beyond the words of the legislation’.26 Indeed, the interpretation of law is part of law itself, whether in common law or civil law systems.27 Beyond legislation and its interpretation, law also lies in ‘an exercise of official discretion [which] may be influenced by policy manuals or guidelines’.28 And, more widely, legal pluralism recognises ‘the presence in a social field of more than one legal order’,29 in which ‘citizens … create and negotiate their own normative standards to shape and symbolize social behaviour and their own institutions to reinforce or apply these standards’.30 Clearly law’s many manifestations – leading to its ‘amorphous’31 quality – render impossible any attempt to know ‘all law’. Alexander points out that ‘a US citizen is subject to thousands of federal and state criminal laws’, and argues that it would be ‘absurd to suggest that one ought to know the content of all or even most of them; and, indeed, no one even comes close to doing so’.32 This is undoubtedly true, and a right of access to law would not be an attempt to address such a hopeless task. Rather, the obligations on a state would be met by ensuring that its law can be known when necessary, meeting a standard of ‘accessibility and understandability’.33 This need will be different according to circumstances: measures to ensure that the relevant law is accessible and understandable to migrants and young people, for example, will be quite different from those to ensure that the relevant law is accessible and understandable to, say, company directors, health professionals and engineers. To ensure that the law can be readily found – the first obligation on the state – requires more than mere promulgation and publication. Jeremy Bentham was adamant that ‘[t]he notoriety of every law ought to be as extensive as its binding force’.34 Beyond promulgation and publication, therefore, the ready finding of law (its ‘obtainability’35) requires the state to actively promote 23 24

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A. Freiberg, Regulation in Australia (Sydney: Federation Press, 2017), pp. 203–222. J. M. Keyes, ‘Perils of the Unknown – Fair Notice and the Promulgation of Legislation’ (1993) 25 Ottawa Law Review 579 at 580 and 582. B. Peeters, ‘Editorial: European Supervision on the Use of Vague and Undetermined Concepts in Tax Laws’ (2013) 3 European Community Tax Review 112 at 112. Keyes, ‘Perils of the Unknown’, 582. Ibid.; D. N. MacCormick and R. S. Summers, ‘Introduction’, in D. N. MacCormick, R. S. Summers and A. L. Goodhart (eds.), Interpreting Precedents: A Comparative Study (London: Routledge, 2016); J. H. Merryman and R. Pérez-Perdomo, The Civil Law Tradition:  An Introduction to the Legal Systems of Europe and Latin America, 3rd ed. (Stanford: Stanford University Press, 2007), pp. 43–47; V. Fon and F. Parisi, ‘Judicial Precedents in Civil Law Systems: A Dynamic Analysis’ (2006) 26 International Review of Law and Economics 519. Keyes, ‘Perils of the Unknown’, 582. J. Griffiths, ‘What Is Legal Pluralism?’ (1986) 24 Journal of Legal Pluralism 1, cited by R. Cotterrell, Living Law: Studies in Legal and Social Theory (London: Routledge, 2016), p. 147. R. A. Macdonald, ‘Metaphors of Multiplicity: Civil Society, Regimes and Legal Pluralism’ (1998) 15 Arizona Journal of International and Comparative Law 69 at 77. Keyes, ‘Perils of the Unknown’, 583. L. Alexander, ‘Ignorance as a Legal Excuse’, in R. Peels (ed.), Perspectives on Ignorance from Moral and Social Philosophy (New York: Routledge, 2017), p. 208. Mommers, ‘Access to Law in Europe’, p. 395. J. Bentham, The Limits of Jurisprudence Defined (New York: Columbia University Press, 1945), p. 155. Å. Frändberg, From Rechtsstaat to Universal Law-State: An Essay in Philosophical Jurisprudence (Cham: Springer, 2014), p. 121.

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law, to make it known (to the relevant community of interest) that there are laws and what those laws are. These days, Bentham’s ‘sound of trumpet in the streets’36 is the Internet, which has for many years made it possible for the state to promulgate its laws, and the decisions of courts, very widely. But the Internet,37 and more recently smartphone apps,38 are far from being a complete solution. Obstacles to be negotiated include state copyright in legislation,39 questions of format, authority and republishing rights,40 issues of complexity, cost, dynamism and interconnectedness,41 and technical matters to do with the data.42 But the most significant obstacle is that electronic promulgation will simply not reach people who do not have access to the Internet because, for example, they live in remote areas or are poor.43 The state must therefore adopt other means to ensure that the most basic requirement of accessibility – knowledge of laws – is achieved. Bentham’s vision of using schools, churches, markets, shops, places of amusement, theatres and highways44 to reach the populace may still be valid in some circumstances: contemporary examples include using radio and television,45 theatres,46 public libraries,47 paralegal services48 and traditional law systems;49 and Mitee suggests that ‘[i]ndigenous communities should also use their homegrown means of information dissemination to create public awareness of laws, such as the use of town criers’.50 The state’s second obligation, to ensure that law, once found, can be readily understood, requires, at the very least, that the law is expressed in plain language, and in a language that

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J. Bentham, ‘Of Promulgation of the Laws’, in J. Bowring (ed.), The Works of Jeremy Bentham, 11 vols. (Bristol: Thoemmes Press, 1995), vol. I: Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law, p. 157. See G. Greenleaf, A. Mowbray and P. Chung, ‘The Meaning of “Free Access to Information”: A Twenty Year Evolution’ (2013) 1 Journal of Open Access to Law 1; R. Cormacain, ‘Have the Renton Committee’s Recommendations on Electronic Access to Legislation Been Fulfilled?’ (2013) 19 European Journal of Current Legal Issues; G. Riethmuller, ‘Improving the Use of Court Decisions in the Federal Circuit Court’ (2016) 25 Journal of Judicial Administration 167; L. Mommers et al., ‘Understanding the Law: Improving Legal Knowledge Dissemination by Translating the Contents of Formal Sources of Law’ (2009) 17 Artificial Intelligence and Law 51 at 52. See e.g. S. Bouclin, J. McGill and A. Salyzyn, ‘Mobile and Web-Based Legal Apps:  Opportunities, Risks and Information Gaps’ (2017) 15 Canadian Journal of Law and Technology 229; T. Sourdin, ‘Justice in the Age of Technology: “The Rise of Machines Is upon Us” ’ (2017) 139 Precedent 4. See, for example, J. Bannister, ‘Open Access to Legal Sources in Australasia’ (1996) 3 The Journal of Information, Law and Technology, available at:  https://warwick.ac.uk/fac/soc/law/elj/jilt/1996_3/bannister/; Greenleaf, Mowbray and Chung, ‘The Meaning of Free Access to Information’. Mitee addresses the issue when making a case for a human right of ‘public access to legal information’: Mitee, ‘The Right of Public Access to Legal Information’, 1446. Greenleaf, Mowbray and Chung, ‘The Meaning of Free Access to Information’. Cormacain, ‘Renton Committee’s Recommendations on Electronic Access to Legislation’, Part 3. Mommers, ‘Access to Law in Europe’, pp. 389–390. See, for example, M. Lloyd, ‘The Digital Divide and Equal Access to Justice’ (2001–2002) 24 Hastings Communications and Entertainment Law Journal 505. Bentham, ‘Of Promulgation of the Laws’. See e.g. R. B. Olajide and T. A. Ladigbolu,‘Farmers’ Information Needs in Soap Opera Utilisation for Agricultural Enterprise Promotion in Southwestern Nigeria’ (2017) 21 Journal of Agricultural Extension 142; K. Decker, C. Sage and M. Stefanova, Law or Justice: Building Equitable Legal Institutions (Washington, DC: World Bank, 2005). J. Booton and P. Dwyer, ‘ “Legal Theatre”: A Theatre-Based Approach to Community Legal Education’, Department of Performance Studies, University of Sydney, April 2006, available at www.lawfoundation.net.au/ljf/lawed15.nsf/9f20 43ee7ccfa2ddca256f1200115808/8d19068db99e3d7cca25720c000aac3f/$FILE/LegalTheatreRpt06.pdf. E. McKibben and S. Scott, ‘Community Access to Legal Information’ (2000) 8 Australian Law Librarian 17. V. Maru, ‘Between Law and Society: Paralegals and the Provision of Justice Services in Sierra Leone and Worldwide’ (2006) 31 Yale Law Journal 427. Penal Reform International, Access to Justice in Africa and Beyond: Making the Rule of Law a Reality (Chicago: PRI, Bluhm, NITA, 2007). Mitee, ‘The Right of Public Access to Legal Information’, 1487, citing literature on traditional means of communication in Africa.

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those who are subject to it will understand.51 Again Bentham, a champion of access to law, saw that law should be presented to those governed by it ‘in such manner as that they may have it habitually in their memories, and may possess every facility for consulting it, if they have any doubts respecting what it prescribes’.52 Contemporary examples include explanatory notes to legislation,53 translations54 (as Bentham proposed55), plain language drafting,56 plain language resources,57 public or community legal education58 and the use of artificial intelligence.59 Some interpretive intervention, such as a lawyer’s advice, may be necessary to ensure that law, once known, is understood. This suggests an extension of the established right of access to legal advice and representation discussed above, from the trial-related context to advice more generally.60 Finally, to ensure that the law can be readily complied with or used by those who are subject to it, the state must take steps that ensure that a person has access to the legal system and processes in which law operates; this, too suggests the established right of access to legal advice and representation. In sum, the claimed right of access to law is a right of effective access, such that a person can know, understand and comply with or use the law as they need to. The concomitant obligation on the state is to ensure that measures are in place such that those who are subject to the law can know, understand and comply with or use it when necessary. At a minimum, for example, a state might meet its obligations by providing each of the following: timely publication of promulgated laws in a range of media and the official languages of the state, a plain language explanation of its law in all principal languages spoken in the state, and means-tested legal advice and representation services to supplement privately available legal services. 51

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Mitee would include this in his proposed contents of a ‘UN Convention on the Right of Public Access to Legal Information’: Mitee, ‘The Right of Public Access to Legal Information’, 1483. Bentham, ‘Of Promulgation of the Laws’, p. 158: ‘If the nation which ought to obey the same laws is composed of different peoples, speaking different languages, it is proper that an authentic translation of the code should be made into each of these languages.’ See e.g. s15J of the Australian Legislation Act 2003; P. O’Neill, ‘Was There an EM? – Explanatory Memoranda and Explanatory Statements in the Commonwealth Parliament 1901–82’ (2004–05) Parliamentary Library, Research Brief No. 15. See F. de Varennes, ‘Language Rights as an Integral Part of Human Rights – a Legal Perspective’, in M. Koenig (ed.), Democracy and Human Rights in Multicultural Societies (Aldershot: Ashgate, 2007). Mitee would include this in his proposed contents of a ‘UN Convention on the Right of Public Access to Legal Information’: Mitee, ‘The Right of Public Access to Legal Information’, 1482. Bentham, ‘Of Promulgation of the Laws’, p. 155. See, for example, H. Xanthaki, ‘On Transferability of Legislative Solutions: The Functionality Test’, in C. Stefanou and H. Xanthaki (eds.), Drafting Legislation:  A Modern Approach (Aldershot:  Ashgate, 2016); Y. Roznai and N. Mordechay, ‘Access to Justice 2.0: Access to Legislation and Beyond’ (2015) 3 The Theory and Practice of Legislation 333 at 347–355; M. Kirby, ‘How I Learned to Drop Latin and Love Plain Legal Language’ (2013) 51 New South Wales Law Society Journal 60; P. Butt, ‘The Assumptions behind Plain Legal Language’ (2002) 32 Hong Kong Law Journal 173; R. Sullivan, ‘The Promise of Plain Language Drafting’ (2001) 47 McGill Law Journal 97; see also the website of Clarity International: www.clarity-international.net. See, for example, U. Gorham, Access to Information, Technology, and Justice: A Critical Intersection (London: Rowman and Littlefield, 2017); K. Laster and R. Kornhauser, ‘The Rise of “DIY” Law: Implications for Legal Aid’, in A. Flynn and J. Hodgson (eds.), Access to Justice and Legal Aid: Comparative Perspectives on Unmet Legal Need (Oxford and Portland: Hart Publishing, 2017); D. Dyson and K. Schellenberg, ‘Access to Justice: The Readability of Legal Services Corporation Legal Aid Internet Services’ (2017) 21 Journal of Poverty 142; C. Denvir, ‘Online and In The Know? Public Legal Education, Young People and the Internet’ (2016) 92–93 Computers and Education 204; Roznai and Mordechay, ‘Access to Justice 2.0’, 356–357; M. Lawler, J. Giddings and M. Robertson, ‘Opportunities and Limitations in the Provision of Self-Help Legal Resources to Citizens in Need’ (2012) 30 Windsor Year Book of Access to Justice 185. Roznai and Mordechay, ‘Access to Justice 2.0’, 357–362; A. Wilczynski, M. Karras and S. Forell, ‘The outcomes of community legal education: a systematic review’ (2014) Justice Issues, Paper 18. Mommers et al., ‘Understanding the Law’, 52. See e.g. Rice, ‘Reasoning a Human Right to Legal Aid’, pp. 200–202.

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The normative content of a right of access to law has obvious resource implications for a state, and it seems apt to consider a state’s obligation in the same terms as economic, social and cultural rights.61 Even though full realisation is progressive, the obligation ‘to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights’62 is immediate, and the most extensive realisation must be achieved under prevailing circumstances with particular attention to ‘the most disadvantaged and marginalized members or groups of society’.63 On this approach, a violation of the right would occur when a state fails to ensure the satisfaction of, at the very least, the ‘minimum essential level required’ to ensure effective access to law.

42.2 Alternatively: A Derived Auxiliary Right of Access to Law A claim to a new human right faces a ‘painstaking and time-consuming’ process at the United Nations,64 which is the final arbiter of what qualifies as a contemporary human right.65 Thus, ‘new’ human rights are not arrived at easily, or without substantial global consensus. An alternative to this difficult path to recognition is states’ practice and human rights jurisprudence, through which, to very similar effect, an auxiliary right – a right that serves to protect some primary right – might be derived.66 It is not uncommon to ‘interpret an existing right that … still lacks clear and complete definition’67 and, in so doing, identify previously unarticulated aspects of the right.68 Indeed, the right to develop and discuss new human rights ideas69 is itself said to be ‘an elaboration of the right to freedom of opinion and expression, the right to freedom of assembly and the right to freedom of association’.70 It may be, therefore, that a right of access to law can be said to be part of a deeper

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Art. 2 of the International Covenant on Economic Social and Cultural Rights (ICESCR), New York, 16 December 1966, in force 3 January 1976, 993 UNTS 3. See CESCR, General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2(1) ICESCR), 14 December 1990, UN Doc. E/1991/23, para. 10; for examples, see CESCR General Comments relating to housing, food and health rights, as cited e.g. in I. Leijten, ‘Defining the Scope of Economic and Social Guarantees in the Case Law of the ECtHR’’, in E. Brems and J. Gerards (eds.), Shaping Rights in the ECHR: The Role of the European Court of Human Rights in Determining the Scope of Human Rights (Cambridge: Cambridge University Press, 2013), p. 129. CESCR, General Comment No. 3, para. 10. CESCR, An Evaluation of the Obligation to take Steps to the Maximum of Available Resources under an Optional Protocol to the Covenant, 21 September 2007, UN Doc. E/C.12/2007/1, para. 4. P. Alston, ‘Conjuring Up New Human Rights:  A Proposal For Quality Control’ (1984) 78 American Journal of International Law 607 at 613–14; advocating for a ‘UN Convention on the Right of Public Access to Legal Information’, Mitee does not address the reality of actually securing institutional recognition of a human right: Mitee, ‘The Right of Public Access to Legal Information’, 1471–1489. Alston, ‘Conjuring Up New Human Rights’, 607, citing R. Bilder, ‘Rethinking International Human Rights: Some Basic Questions’ (1969) Wisconsin Law Review 171 at 173. On ‘auxiliary’ rights and their derivation, see e.g. C. Wellman, The Proliferation of Rights: Moral Progress or Empty Rhetoric? (New York and London: Routledge, 2018). T. McCombs and J. Shull González, ‘Right to Identity’, paper, University of California, Berkeley School of Law, November 2007, p. 4, available at www.scm.oas.org/pdfs/2007/CP19277.PDF; and see B. Ackerly, ‘Interpreting the Political Theory in the Practice of Human Rights’ (2017) 36 Law and Philosophy 135 at 148–149. See, for example, J. K. Kessler, ‘The Invention of a Human Right: Conscientious Objection at the United Nations, 1947–2011’ (2013) 44 Columbia Human Rights Law Review 753; L. Shaver, ‘The Right to Read’ (2015) 54 Columbia Journal of Transnational Law 1. UNGA, Resolution 53/144 on Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, 8 March 1999, UN Doc. A/RES/53/144, Article 7. UN Special Rapporteur on the situation of human rights defenders, Commentary to the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, July 2011, p. 83.

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understanding of existing human rights. I first address and reject an argument that would derive such a right from a ‘right to information’ under Article 19 of the International Covenant on Civil and Political Rights (ICCPR),71 before proposing that a right of access to law can be derived, first, from states’ ‘positive obligation to ensure’ and related principles of a right to a remedy, effectiveness and the obligation to fulfil, and, second, from the requirement of quality of law. 42.2.1 Not Relying on a ‘Right of Access to Information’ Differently from the arguments I make above for a stand-alone right, it has been said that the right to freely seek, receive and impart information (Art. 19 ICCPR) may incorporate a right of access to law through the newly emerging ‘right of access to information’.72 While I would like to pursue this apparently straightforward path to establishing a right of access to law, I do not think that Article 19 ICCPR can properly support such a claim. I agree with Steven Jamar when he argues that lack of available, accurate and clear legal information ‘can lead to arbitrary and capricious enforcement of what are in essence secret laws, lack of confidence in the legitimacy of the legal system, and lack of conformity of behaviour by people to the laws’.73 To address this, Jamar turns to Article 19 ICCPR, asserting that ‘laws of a State are a kind of information’.74 By bringing laws of a state within the scope of Article 19 ICCPR, Jamar is able to claim that ‘[r]eady access to law is a human right’.75 But I do not think it is possible to bring the laws of a state within the scope of Article 19 ICCPR, as Jamar assumes can be done.76 The nature, purpose and operation of the right to information in both the text and jurisprudence of Article 19 ICCPR are quite different from the nature, purpose and operation of a right of access to law. A right to information is, broadly speaking, concerned with information held by the state in its administration and decision-making capacity, and imposes on the state an obligation to ‘make every effort to ensure easy, prompt, effective and practical access’ to government information of public interest.77 Differently from a right to information, a right of access to law is not concerned with transparency and accountability of state conduct, but rather with knowledge of state laws that regulate people’s conduct; it is not concerned with laws that are ‘information’ to be ‘released’ according to public interest considerations; it does not depend on the purpose for which the information is being sought;78 it does not accept that a state’s laws are ‘information’ that can be made known only for some purposes and not for others; and there is no question of a person’s having to seek something that would otherwise 71

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International Covenant on Civil and Political Rights, New York, 16 December 1966, in force 23 March 1976, 999 UNTS 171. See e.g. M. McDonagh, ‘The Right to Information in International Human Rights Law’ (2013) 13 Human Rights Law Review 25; Mommers, ‘Access to Law in Europe’, p. 393; W. Hins and D. Voorhoof, ‘Access to State-Held Information as a Fundamental Right under the European Convention on Human Rights’ (2007) 3 European Constitutional Law Review 114; HRC, CCPR, General Comment No. 35: Liberty and Security of Person (Art. 9), 16 December 2014, UN Doc. CCPR/C/GC/35. S. D. Jamar, ‘The Human Right of Access to Legal Information: Using Technology to Advance Transparency and the Rule of Law’ (2001) 1 Global Jurist Topics 2, Art. 6 at 6. Ibid. Ibid. Mitee relies on Jamar’s right to information reasoning when making a case for a human right of ‘public access to legal information’: Mitee, ‘The Right of Public Access to Legal Information’, 1451–1454. HRC, Comment No. 34: Art. 19: Freedoms of opinion and expression, 12 September 2011, UN Doc. CCPR/C/GC/34, para. 19. McDonagh, ‘The Right to Information’, 48–49.

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be kept from them, or of any difference in status among those to whom the law applies.79 It is difficult, therefore, to see the purpose and operation of Article 19 ICCPR extending to guarantee a person’s right to know the law in the way I have described above. I turn, therefore, to an argument that right of access to law can be derived from states’ ‘positive obligation to ensure’ and from the requirement of quality of law. 42.2.2 Relying, First, on a State’s ‘Positive Obligation to Ensure’ States have an overarching ‘positive obligation’80 under Article 2(1) ICCPR ‘to ensure to all individuals within their territory and subject to their jurisdiction the rights recognized in the [ICCPR]’,81 and Article 2(2) ICCPR requires states ‘to take the necessary steps … to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the Covenant’. But the Committee and commentators are silent on what ‘necessary steps’, other than adopting laws, a state must implement in order to ‘ensure’ human rights. The Committee has invited states parties ‘to consider incorporation of the Covenant to render it part of domestic law to facilitate full realization of Covenant rights’,82 suggesting that legislative enactment is not enough to ensure Covenant rights, and that something more is needed. That ‘something more’ could be the type of measures that realise a right of access to law. Similarly, Article 2(1) ICESCR obliges states ‘to take steps … with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures’.83 The phrase ‘by all appropriate means’ must be given its ‘full and natural meaning’,84 and there is clearly scope to develop jurisprudence that could encompass the type of measures that realise a right of access to law. An auxiliary right of access to law is strongly suggested by Article 2 of both the ICCPR and the ICESCR, in order to give effect to all substantive rights in those treaties. At the same time, there are principles that support this overarching obligation, each of which adds force to an argument that the obligation carries with it an auxiliary right of access to law. Three such principles are the right to a remedy, effectiveness and the ‘obligation to fulfil’. 42.2.2.1 Right to a Remedy A ‘right to a remedy’ arises from the interrelationship between the positive obligations imposed under Article 2 ICCPR and the need to provide effective remedies in the event of breach under Article 2(3) ICCPR;85 it is integral to the enjoyment of economic, social and cultural rights, is available as a general principle of public international law86 and is established in international

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Ibid., 46–47. HRC, General Comment No. 31:  The nature of the general legal obligation imposed on States parties to the Covenant, 26 May 2004, UN Doc. CCPR/C/21/Rev.1/Add. 13, para. 8. Ibid., para. 5. Ibid., para. 13 (emphasis added). CESCR, General Comment No. 3, para. 4 (emphasis added). Ibid. HRC, General Comment No. 31, para. 13; see also Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984, in force 26 June 1987, 1465 UNTS 85, Art. 14; Convention on the Elimination of All Forms of Discrimination against Women, New York, 18 December 1979, in force 3 September 1981, 1249 UNTS 13, Art. 2; and International Convention on the Elimination of All Forms of Racial Discrimination, New York, 21 December 1965, in force 4 January 1969, 660 UNTS 195, Art. 6. S. Leckie and A. Gallagher (eds.), Economic, Social, and Cultural Rights:  A Legal Resource Guide (Philadelphia: University of Pennsylvania Press, 2006), p. xxiv.

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human rights law jurisprudence.87 The United Nations Human Rights Committee has commented that ‘the enjoyment of the rights recognized under the Covenant can be effectively assured by the judiciary’, that ‘[a]dministrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations’, and that states parties must ‘make reparation to individuals whose Covenant rights have been violated’.88 Securing a remedy assumes some initiating conduct by a victim of a violation, requiring knowledge of the existence of a right and a remedy, and capacity and resources to pursue the remedy. In the same General Comment the Human Rights Committee recognises that the mere existence of judicial and administrative mechanisms alone will not ensure an effective remedy, and says that those remedial mechanisms must be ‘accessible and effective’. For example, the question of an accessible and effective remedy arose for the European Court of Human Rights in Čonka v.  Belgium where ‘information on the available remedies … was printed in tiny characters and in a language [the applicants] did not understand’.89 Without effective access to the law that guarantees both the right and the remedy, a person has no right to a remedy. An auxiliary right to effectively know the law is therefore required for the enjoyment of the substantive right. 42.2.2.2 The Effectiveness Principle The effectiveness principle is one of interpretation in international law, ‘a general direction for making sense of the wording, context, and the object and purpose of human rights treaties’.90 The European Court of Human Rights frequently emphasises that human rights guarantees must be ‘practical and effective’, and numerous decisions of the Court demonstrate that ‘effectively respecting [human] rights can entail positive obligations on States’.91 The case of Airey92 – cited regularly as an example of the effectiveness principle93  – raised an issue quite close to the idea of a right of access to law. In Airey, the Court held that Mrs Airey’s right of access to court (Art. 6 European Convention on Human Rights and Fundamental Freedoms94) was not an effective right in her circumstances, and that the state was obliged to adopt some means to ensure that she could enjoy that right (though the state was not necessarily obliged to provide free legal aid).95

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CESCR, General Comment No. 23: The Right to just and favourable conditions of work, 26 April 2016, UN Doc. E/ C.12/GC/23, para. 57; CESCR, General Comment No. 9: The domestic application of the Covenant, 3 December 1998, UN Doc. E/C.12/1998/24, para. 3; and see C. Chinkin, ‘The Protection of Economic, Social and Cultural Rights Post-Conflict’, Office of the High Commissioner for Human Rights, 2009, pp. 31–33, available at www2.ohchr.org/ english/issues/women/docs/Paper_Protection_ESCR.pdf. HRC, General Comment No. 31, para. 15. ECtHR, Čonka v. Belgium (Appl. No. 51564/99), decision, 5 February 2002, para. 44. Baṡak Çali, ‘Specialized Rules of Treaty Interpretation:  Human Rights’, in D. Hollis (ed.), The Oxford Guide to Treaties (Oxford: Oxford University Press, 2012), p. 547. A. Mowbray, ‘The Creativity of the European Court of Human Rights’ (2005) 5 Human Rights Law Review 57 at 75–78. ECtHR, Airey v. Ireland (Appl. no. 6289/73), judgment, 9 October 1979. E.g. J. Ringelheim ‘Integrating Cultural Concerns in the Interpretation of Traditional Individual Rights:  Lessons from the International Human Rights Jurisprudence’, in J.-C. Merle (ed.), Spheres of Global Justice, 2  vols. (Dordrecht: Springer Science and Business Media, 2013), vol. 1: Global Challenges to Liberal Democracy: Political Participation, Minorities and Migrations, p. 205. Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, in force 3 September 1953, 213 UNTS 221. ECtHR, Airey v.  Ireland, para. 26; see also ECtHR, Riepan v.  Austria (Application no.  35115/97), judgment, 14 February 2001, para. 29.

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Similar reasoning supports an auxiliary right of access to law in circumstances where, for want of knowledge of the law, a person is unable to enjoy a human right. A state would be in breach of its obligation to ensure effective rights protection when, for example, a domestic law exists to protect against degrading treatment, compulsory labour or arbitrary interference with privacy, but a person does not receive that protection because the state has not taken reasonable steps to ensure that they are aware of the law. 42.2.2.3 The Obligation to Fulfil A state’s ‘obligation to fulfil’ is one of three types or levels of obligations that all human rights impose on states parties: ‘the obligations to respect, protect and fulfil’.96 The ‘obligation to fulfil’ contains obligations ‘to facilitate, provide and promote’, and ‘requires States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full realization of the right’.97 The focus here is on steps that the state is obliged to take to ensure the full realisation of a right, and one can readily infer from this an obligation to ensure that a person can know, understand and comply with or use the law that protects a human right. A state would be in breach of its obligation to fulfil (facilitate) when, for example, a domestic law provides social security, but a person does not get the benefit that is available because the state has not taken reasonable steps to ensure that the person is aware of the law and the benefit it confers. 42.2.3 Relying, Second, on ‘Quality of Law’ An alternative basis for a derived right of access to law is the doctrine of ‘quality of law’. The enjoyment of many established human rights is subject to limits ‘imposed by law’, so that a person’s enjoyment of a human right is dependent on their knowing and understanding the law, and the effective exercise and enjoyment of the right is dependent on access to law. European human rights jurisprudence has established standards of accessibility and foreseeability (‘quality of law’) if a state’s law is to permissibly limit human rights.98 The question that is asked is whether the law that is relied on to limit enjoyment of a human right is of the requisite ‘quality’ in two ways: does the citizen have an adequate indication, in the circumstances, of the legal rules applicable to a given case, and are the legal rules formulated with sufficient precision to enable the citizen to regulate their conduct?99 A citizen ‘must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail’.100 Making a law known to these standards is fundamental to its status as ‘law’.101 Both the European Court of Human Rights and the common law have been prepared to deny to a state 96

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CESCR, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 ICESCR), 11 August 2000, UN Doc. E/C.12/2000/4, para. 33 (original emphasis); and see CRC Committee, General Comment No. 16: State obligations regarding the impact of the business sector on children’s rights, 17 April 2013, UN Doc. CRC/C/GC/16, para. 29; CRC Committee, General Comment No. 5: General measures of implementation of the Convention on the rights of the child, 27 November 2003, UN Doc. CRC/C/2003/5, paras. 11 and 40. CESCR, General Comment No. 14, para. 33. Similarly in Canada under the Charter of Rights and Freedoms; see Supreme Court of Canada, R v. Nova Scotia Pharmaceutical Society [1992] 2 S.C.R. 606, discussed in Keyes, ‘Perils of the Unknown’, 584. ECtHR, The Sunday Times v. The United Kingdom (Appl. no. 6538/74), judgment, 26 April 1979, para. 49. Ibid., para. 49. See e.g. ECtHR, Nolan and K v. Russia (Appl. no. 2512/04), decision, 12 February 2009, para. 99; ECtHR, K.-H. W. v. Germany (Appl. No. 37201/97), judgment, 22 March 2001, paras. 72 and 73.

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the force of its law on the basis that the law was not ‘known’ in this way. It is implicit in this that a citizen enjoys a right to effectively know the law, an auxiliary right that is required for the enjoyment of substantive rights. This European jurisprudence may give direction to the development of a similar standard for ‘law’ in Article 2(1) ICESCR and Article 2(2) ICCPR; the Human Rights Committee has already said that ‘a norm, to be characterised as a “law” [for purposes of limiting the right to freedom of expression], must be formulated with sufficient precision to enable an individual to regulate his or her own conduct accordingly and it must be made accessible to the public’.102 The ‘quality of law’ discussion is largely in the context of states seeking to limit rights ‘in accordance with law’. However, the law of a state may not only limit the scope of a human right but may be necessary to specify the substantive nature of a right. Both these aspects of human rights – the limitations that a state law may impose and the elucidation that a state law must give – import a requirement that a person knows, understands and can use the state law. This is the essence of a right of access to law. For example, to give effect to the right to liberty (Art. 9 ICCPR), ‘[t]he relevant factors [for detention pending trial] should be specified in law’,103 unlawful attacks on honour and reputation (Art. 17 ICCPR) must be given ‘protection of the law’, and ‘the precise method by which [ICESCR] rights are given effect in national law is a matter for each State party to decide’.104 In other words, a person who does not know and understand the relevant state law will not know the terms on which she can enjoy human rights that are, necessarily, articulated in domestic law. Even when there is no explicit reference to ‘law’ in the description of a right, many human rights can be enjoyed only if domestic laws that give effect to those rights are effectively known and understood. If, for example, a people are to exercise their right to freely determine their political status – enjoyed by virtue of their right of self-determination105 – they need to know, understand and be able to use the state’s legal systems. Making the law known, accessible and available is, therefore, arguably within the positive obligation on a state ‘to promote realization of self-determination of peoples’.106 Similarly, a person cannot enjoy a host of rights and freedoms without effective knowledge and understanding of the relevant domestic law; this is true for any of, for example, rights to liberty of movement and to choose residence; the right to not be subject to arbitrary or unlawful interference with privacy, family, home or correspondence; the right to information; the right to peaceful assembly; the right to participate in public affairs; the right to vote; and the right to an effective remedy. It is true, too, for economic, social and cultural rights; without effective knowledge and understanding of the relevant domestic law a person or community cannot enjoy, for example, their rights to freely dispose of natural wealth and resources; their rights to gain living by work freely chosen and accepted and to secure just and favourable conditions of work; their right to education; and their right to enjoy the benefits of scientific progress. Thus an auxiliary right of access to law can be derived from both a state’s overarching positive obligation to ensure, and the requirements of quality of law. HRC, CPPR, General Comment No. 34, para. 25. HRC, CCPR, General Comment No. 35, para. 38. 104 CESCR, General Comment No. 9: The Domestic Application of the Covenant, 3 December 1998, UN Doc. E/C12/ 1988/24, para. 5. 105 Art. 1 ICCPR. 106 UNGA, Resolution 2625 on Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 24 October 1970, UN Doc. A/RES/ 2625 (XXV). 102

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42.2.4 Rights Inflation Revisited? Even with a derived auxiliary right rather than a wholly new right, there is a ‘rights inflation’ debate. On one view, the effect of deriving the auxiliary rights is an unwarranted inflation of rights, and on the other it is ‘a clarification of what universal rights enjoyment requires’.107 Allen Buchanan argues that ‘[r]ights in existing conventions can be given overexpansive interpretations [and] that unbridled proliferation damages the very idea of international human rights by abandoning the notion of extraordinarily high priority norms in favour of an ever expanding list of protected interests’,108 while Brooke Ackerly argues that human rights interpretations are ‘necessary clarification and guidance as to what international legal human rights require in order that they be enjoyed in fact and not merely promised on paper’.109 I prefer and rely on Ackerly’s view, that the interpretations that give rise to an auxiliary right of access to law would indeed ensure that the human rights on which the auxiliary right is based are actually enjoyed and not merely promised. 42.2.5 Limited Scope If conceptualised as an auxiliary right, a right of access to law would be available only when necessary to give effect to a substantive right. Although it would be an obligation against which states would report compliance, a person may complain of a violation only when a substantive right is at stake. But the argument I set out above for a substantive right of access to law is founded on the pervasiveness of law in social life, and a person’s need to know the law arises in many more circumstances than those relating to an established human right. Thus an auxiliary right of access to law would require states to make known only law that relates to the enjoyment of substantive rights. This coverage is well short of ensuring that the law is known to the extent that it would be were the right of access to law a substantive right in itself.

42.3 Conclusion To live with dignity, exercising reason and conscience, a person must have effective access to the law that both controls and facilitates their life. Absent knowledge and understanding of law, a person is both vulnerable to and unassisted by law. This is the basis for exploring a right of access to law, an exercise that resonates with Bentham’s insights over 200 years ago. Bentham’s call for the ‘notoriety of every law’, through the ‘sound of trumpet in the streets’ if necessary, can be answered by seeing access to law as itself a matter of human dignity, such that it can be conceptualised as a free-standing right, one that is not merely the inflated conversion of a human desire, need or want, but strictly necessary to the enjoyment of life. Alternatively, working within the established field of human rights jurisprudence, there are ways that a right of access to law can be identified as an auxiliary right that is necessary for the realisation of existing substantive rights, although this derivative approach has a more limited scope than would a substantive right.

Ackerly, ‘Interpreting the Political Theory’, 149. A. Buchanan, The Heart of Human Rights (Oxford: Oxford University Press, 2013), p. 286. 109 Ackerly, ‘Interpreting the Political Theory’, 148–149. 107 108

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43 A Right of Access to Law – or Rather a Right of Legality and Legal Aid? Janneke Gerards

43.1 Introduction Human rights evolve continuously. Sometimes entirely new rights spring up, for example in response to technological developments. Most ‘new’ human rights, however, are refinements of existing rights, which somehow have come to be regarded as deserving protection in their own right. An intriguing question is when such new (aspects of) rights deserve to be formally recognised or even codified in international treaties or national constitutions. In these comments I will try to answer this question for the right that Simon Rice suggests should be recognised: the right of access to law. I will focus on the added value of recognising such a right, rather than dealing with its theoretical foundations.1 After pinpointing three perspectives which could help to determine the usefulness of recognising new human rights (Section 43.2), I will examine how they work out for the right of access to law – mainly based on my knowledge of the European Convention of Human Rights and constitutional law (Section 43.3). In Section 43.4 I will raise a number of more practical issues related to the suggested normative content of this right. My tentative conclusion will be that, in light of the values the right of access to law would serve to protect, it might be more useful to codify the principle of legality and the right to legal aid instead (Section 43.5).

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Rice purports that human rights should find their basis in the ‘central identity’ of human rights, which, in his view, is the idea of human dignity. Interestingly, he does not mention other possible rationales for recognising a right of access to law, in particular rationales related to democracy, participation or the rule of law (see e.g. C. Tomuschat, Human Rights: Between Idealism and Realism, 3rd ed. (Oxford: Oxford University Press, 2014), p. 91). Relying on that rationale might have the advantage of clarity, since it would help to distinguish between recognition of human rights based on ‘intrinsic’ values (such as human dignity) and those based on more ‘extrinsic’ values (such as societal participation and legal protection). This could make it clear that the first category of human rights can only be invoked by human beings (or organisations directly representing them), while the second can also be invoked by legal persons. See in more detail (in Dutch) J.  H. Gerards, Grondrechten onder spanning: Bescherming van fundamentele rechten in een complexe samenleving (Fundamental Rights under Pressure: Protecting Fundamental Rights in a Complex Society) (Utrecht: Utrecht University, 2017), www.uu.nl/ files/reborglgerardsoratie-uu-2017grondrechten-onder-spanning2017pdf; J. D. Ohlin, ‘Is the Concept of Person Necessary for Human Rights?’ (2005) 105 Columbia Law Review 209; J. W. Nickel, Making Sense of Human Rights, 2nd ed. (Oxford: Wiley-Blackwell, 2007).

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43.2 Determining the Usefulness of Recognising New Human Rights The question as to why and when new human rights should be recognised or even codified is not very easy to answer.2 Mostly, it seems that the symbolic value of recognition of new rights is at the forefront. Introducing a new human right conveys a clear message: the right is important, it should be seen and cared about, and it should be respected and protected by those in power. Further, codification may serve the value of cognisability. If a new right is accepted but it is not a cognisable or discernible part of international or national law, it will be difficult for individuals to know they can claim such a right. Finally, recognition of new rights may have legal value in that they make clear that public authorities can be held accountable if they do not comply with the concomitant obligations to respect, protect and fulfil. Generally, it can be expected that the symbolic and cognisability values of the recognition of new human rights are high. This may be different for the legal value of codification, especially if the ‘new’ human right is an aspect or an extension of an existing human right. After all, from a legal perspective the ‘new’ human right is then already protected. Recognition of such an aspect as a self-standing human right would have legal value only if it does not simply entail highlighting the new right, but there is an actual process of specification and definition that helps to give the right a new legal shape or fills important gaps in the protection it currently offers.

43.3 The Origins of the Right of Access to Law In his chapter, Simon Rice describes the right of access to law as an obligation on states to ensure that law, in its many manifestations, can be known. It is for the state to ensure that the law – its law – can, first, be readily found; second, be readily understood; and third, be readily complied with or used by those who are subject to it.3

Effective access to law would guarantee that all individuals can know about the regulation and control exercised by means of law, for example through punitive or administrative sanctions, entry bans, regulation of property or contractual liability rules. In addition, it would allow individuals to understand how the law may facilitate them in advancing and realising their plans and aspirations. To fully benefit from the possibilities offered by the law, they may want to know all about protective measures, measures on access to compensation or social security, or licensing rules. Both the control and regulation aspect and the facilitating aspect of the right of access to law already form part of several human rights. Human rights treaties typically require a legal basis for legitimate restrictions of the exercise of human rights. Implicit in this requirement is that this

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I have developed these standards in relation to the recognition and codification of general principles of good administration and of human rights in Dutch law; see in Dutch, J. H. Gerards, ‘Meer rechtsbeginselen in de Awb? Gezichtspunten voor toekomstige codificatie’ (More Principles of Law in the General Administrative Law Act? Perspectives for Future Codification), in T. Barkhuysen, W. den Ouden and J. E. M. Polak (eds.), Bestuursrecht harmoniseren:  15 Jaar Awb (Harmonising Administrative Law:  15 Years General Administrative Law Act) (The Hague: Boom, 2010), and J. H. Gerards, ‘Beginselrecht “in de regel”: De juridische meerwaarde van het vastleggen van algemene rechtsbeginselen’ (Legal Principles ‘as a Rule’:  The Legal Value of Codifying General Principles of Law), in R. Schlössels et  al. (eds.), In de regel:  Over kenmerken, structuur en samenhang van geschreven en ongeschreven regels in het bestuursrecht (As a Rule: About the Characteristics, Structure and Coherence of Written and Unwritten Norms in Administrative Law) (Deventer: Kluwer, 2012). S. Rice, in this volume, p. 554.

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should be a cognisable legal basis, as is well expressed in the case law of the European Court of Human Rights (ECtHR): Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.4

Thus the ECtHR has clarified that individuals should be able to have access to law and should be able to foresee the consequences of their own behaviour in relation to that law. In addition to this, the ECtHR has read a prohibition of arbitrariness into the ‘prescribed by law’ requirement, which is particularly relevant in relation to secret surveillance.5 In Roman Zakharov, the ECtHR explained this as follows: Foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident. It is therefore essential to have clear, detailed rules on interception of telephone conversations, especially as the technology available for use is continually becoming more sophisticated. The domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures.6

The ECtHR also held that this implies that all relevant legal provisions should be publicly accessible.7 The right of access to law is furthermore closely related to the right of access to information.8 Somewhat similar to the International Covenant on Civil and Political Rights (ICCPR),9 the ECtHR has held that persons or organisations acting as ‘public watchdogs’ (such as journalists or non-governmental organisations) should be given access to readily available government information if they need such information in order to adequately exercise their freedom of expression.10 Another line of ECtHR case law grants individuals access to government information if it is directly related to their private lives, for example because documents contain health risk assessments.11 As Rice has mentioned, this aspect of the right of access to law is therefore already covered by existing codifications. All the same, it must be admitted that these two requirements of access to information and of foreseeability and accessibility are instrumental or accessory in nature. They are not defined as objectives or rights in their own right, but rather as means to an end. For secret surveillance

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ECtHR, Sunday Times v. The United Kingdom (No. 1) (Appl. no. 6538/74), judgment, 26 April 1979, para. 49. But it is not limited to this; see e.g. ECtHR, Ternovsky v. Hungary (Appl. no. 67545/09), judgment, 14 December 2010, para. 23. ECtHR, Roman Zakharov v. Russia (Appl. no. 47143/06), judgment, 4 December 2015, paras. 229–230. Ibid., paras. 239–242. See also S. D. Jamar, ‘The Human Right of Access to Legal Information: Using Technology to Advance Transparency and the Rule of Law’ (2001) 1 Global Jurist Topics 1. Which is addressed more properly by Rice, in this volume, pp. 549f. ECtHR, Magyar Helsinki Bizottság v. Hungary (Appl. no. 18030/11), judgment, 8 November 2016, para. 156. ECtHR, Guerra and Others v. Italy (Appl. No. 14967/89), judgment, 19 February 1998, para. 60.

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measures, the main problem is that one’s private life and one’s private behaviour are affected by the constant uncertainty about whether one’s internet and e-mail behaviour are monitored. Similarly, if journalists have no access to government information, the main issue is that they can exercise their freedom of expression less effectively. Perhaps, therefore, some gaps could be filled if the right of access to law were to be regarded as a separate, self-standing right. But arguably even then, existing codifications do not contain significant gaps in protecting the underlying values of the right of access to law. First, the control and regulation aspect of the right of access to law is covered by the principle of nulla poena sine lege or ‘no punishment without law’. This principle can be found in the Universal Declaration of Human Rights (Art. 11(2)) as well as in several international treaties and many national constitutions. Indeed, it is considered so important as to qualify as a nonderogable right or peremptory norm (jus cogens).12 Even in times of war or emergency, it is only permitted to convict someone for certain acts if that person, at the time they committed the acts, could reasonably have known they were forbidden.13 Core to this principle is that everyone should be able to foresee the legal consequences of their behaviour, which comes very close to the right of access to law. The ECtHR has understood this right to mean that criminal law provisions should be readily accessible and offences should be ‘clearly defined’, which means that ‘the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable’ (the lex certa requirement).14 This also shows that legislation is not the only relevant source of information about the potential consequences of one’s acts. Legislation is necessarily general in nature and ‘there is an inevitable element of judicial interpretation’, because of ‘a need for elucidation of doubtful points and for adaptation to changing circumstances’.15 In the ECtHR’s view, such gradual clarification still meets the requirement of legal certainty, ‘provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen’.16 Another question is what to do when an act has been committed in the past and/or in obeying orders (think of soldiers shooting fugitives trying to cross the wall between East and West Germany), that is, at a time when there was no effective access to the applicable criminal law.17 Here, too, the ECtHR usually probes rather deeply into what reasonably could have been known and expected at the time, once again respecting as much as possible notions of foreseeability.18 Hence, the nulla poena principle covers important values of foreseeability, legal certainty and individual responsibility. However, the principle only applies in relation to punitive sanctions and it does not protect the right of access to law for other control mechanisms, such as liability rules or non-punitive administrative law measures. Moreover, the facilitating aspect of law is

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See W. A. Schabas, The European Convention on Human Rights. A Commentary (Oxford: Oxford University Press, 2015), p. 328. E.g. ECtHR, Korbely v. Hungary (Appl. no. 9174/02), judgment, 19 September 2008, para. 69. ECtHR, Scoppola v. Italy (No. 2) (Appl. no. 10249/03), judgment, 17 September 2009, para. 94. ECtHR, Korbely v. Hungary, para. 71. Ibid. Ibid. Ibid. See also e.g. ECtHR, K.-H.W. v. Germany (Appl. no. 37201/97), judgment, 22 March 2001; ECtHR, Streletz, Kessler and Krenz v.  Germany (Appl. nos. 34044/96, 35532/97 and 44801/98), judgment, 22 March 2001; ECtHR, Kononov v. Latvia (Appl. no. 36376/04), judgment, 17 May 2010.

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also not covered by the principle. It can be maintained, however, that this gap is filled by the constitutional principle of legality.19 In states governed by the rule of law, the legality principle is considered of great importance.20 Values encompassed by the legality principle are recognised in many international law documents. The Universal Declaration, for example, in its preamble contains an explicit reference to the rule of law,21 and the ECtHR has emphasised that the rule of law forms part of the common heritage of all forty-seven contracting states.22 It is generally understood that the constitutional legality principle requires that powers of government be exercised in accordance with the law instead of individual capriciousness, thus offering a safeguard against arbitrariness and a guarantee for individual liberty. The legality principle further ensures equality before the law and, perhaps most importantly for the purposes of these comments, it guarantees legal certainty and foreseeability. The principle starts from the presumption that, in a free and open society, individuals need to be able to adjust their behaviour in accordance with the rules governing that society. This can only be ensured if access to the law is guaranteed and the law is formulated with sufficient precision and clarity.23 The principle of legality thus can form a legal basis from which individuals can claim a right of access to the law, also outside the area of criminal law and also in relation to interests other than human rights. All of this shows that the legal value of separate recognition of a right of access to law is relatively limited. Most, if not all its aspects are already covered by broadly accepted principles or international law provisions. The main reasons why recognition would be useful, then, would be to make the right cognisable and to boost its symbolic value. If that is the aim, however, the question still arises whether Rice’s conceptualisation of the right of access to law is the best possible way to achieve it.

43.4 The Normative Content of the Right of Access to Law As mentioned above, Rice suggests that the normative content of the right of access to law would be

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See L. Mommers, ‘Access to Law in Europe’, in S. van der Hof and M. M. Groothuis (eds.), Innovating Government (The Hague: TMC Asser Press, 2011), p. 392. See classically A. V. Dicey, Introduction to the Study of the Law of the Constitution, 5th ed. (London: Macmillan, 1897) p.  120 and more recently, e.g., T. Bingham, The Rule of Law (London:  Allen Lane, 2010); Y. Roznai and N. Mordechay, ‘Access to Justice 2.0: Access to Legislation and Beyond’ (2015) 3 The Theory and Practice of Legislation 333; European Commission for Democracy through Law (Venice Commission), Rule of Law Checklist (Strasbourg, 2016), CDL-AD(2016)007, A-C. See also L. L. Fuller, The Morality of Law (Yale: Yale University Press, 1969) and J. Raz, The Authority of Law (Oxford: Clarendon, 1979). The notions of ‘rule of law’ and ‘legality’ are sometimes conflated, but it may be said that ‘rule of law’ is broader than ‘legality’, especially if a more substantive conception of the rule of law is adhered to. For a broad definition of ‘rule of law’, see e.g. Juan Carlos Botero and Alejandro Ponce, ‘Measuring the Rule of Law’, The World Justice Project – Working Paper Series no. 001, SSRN id=1966257, http:// dx.doi.org/10.2139/ssrn.1966257. On formal and substantive conceptions, see P. P. Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’, (1997) Public Law 467. For a narrow definition of the rule of law, which overlaps with legality, see B. Z. Tamanaha, ‘A Concise Guide to the Rule of Law’, in G. Palombella and N. Walker (eds.), Relocating the Rule of Law (Oxford: Hart, 2009). I opt for a formal reading of the legality principle (or a narrow reading of the rule of law) here, since this comes closest to an ‘overlapping consensus’ between the different understandings of the principle (see S. Beaulac, ‘The Rule of Law in International Law Today’, in G. Palombella and N. Walker (eds.), Relocating the Rule of Law (Oxford: Hart, 2009), p. 201). See Bingham, The Rule of Law, pp. 6 and 110ff. E.g. ECtHR, Nejdet Ṡahin and Perihan Ṡahin v. Turkey (Appl. no. 13279/05), judgment, 20 October 2011, para. 57; ECtHR, Roman Zakharov v. Russia, para. 56. Bingham, The Rule of Law, p. 37; Jamar, ‘The Human Right of Access to Legal Information’.

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for the State to ensure that the law – its law – can, first, be readily found; second, be readily understood; and third, be readily complied with or used by those who are subject to it.24

To make this more concrete, he explains that the state might meet its obligations by providing: timely publication of promulgated laws in a range of media and the official languages of the state, a plain language explanation of its law in all principal languages spoken in the state, and means-tested legal advice and representation services to supplement privately available legal services.25

In Rice’s view, these obligations would be similar to those resulting from socio-economic rights, which means that states at the very least would have to ensure the satisfaction of the minimum essential level required to guarantee effective access to law. This definition and the socio-economic nature of the purported right raise several questions. First, it is far from obvious what the scope of the right (or state obligation) should be, and when and to what degree it could be justiciable. In a maximalist account, the right probably would entail that full and effective access should be given to all legislative texts as well as to all information relevant to understanding their meaning, such as case law (of higher as well as lower courts), government decrees, by-laws, soft law and policy documents. But which part of this extensive body of information should be made readily accessible to individuals in order for the state to meet its minimum core obligations? When and how could individuals go to court to enforce their rights, and how would they know? Such lack of clarity as to the extent and justiciability of the right of access to law is rather contradictory in light of the aim of the right’s codification, which is to offer individuals ready and effective access to information about their rights and obligations. The suggested concretisation of this right further shows that meeting the state’s obligations would involve considerable costs and practical difficulties. This is true in particular for the obligation to provide for plain language explanations in all of the principal languages spoken in the state. This obligation is almost bound to be controversial and, as a result, may easily remain a dead letter in practice. In turn, this may have a negative impact on the symbolic and cognisability value of the right, which, in terms of the ECtHR, then would become ‘theoretical and illusory’ rather than ‘practical and effective’.26 This would probably be different for the right to access to legal advice services. Indeed, access to legal aid and representation are of great importance to the values supported by the right of access to law, as is also recognised in international human rights law. Moreover, to the extent that international courts already hold that individuals have a responsibility to obtain legal advice if they are unsure about the meaning of a piece of legislation or a line of case law,27 it would be reasonable to impose a concomitant state obligation to make such legal advice readily available and affordable. It is not entirely obvious, however, whether and why it would be useful to codify such rights and obligations as part of a wider, socio-economic and rather underdetermined right of access to law. To all expectations, their symbolic and cognisability values would be supported just as well or even better if these aspects were defined as selfstanding rights.

24 25 26 27

Rice, in this volume, p. 544. For another definition of the right, see Roznai and Mordechay, ‘Access to Justice 2.0’, 3. Rice, in this volume, p. 547. See ECtHR, Airey v. the United Kingdom (Appl. no. 6289/73), judgment, 9 October 1979, para. 24. ECtHR, Scoppola v. Italy (No. 2), para. 102.

561

The Right of Access to Law

561

43.5 Towards Codification of the Principle of Legality and a Right to Legal Aid? Seen from the perspectives briefly sketched in Section 43.2, it is questionable if codifying the right of access to law in the way suggested by Rice would serve their purpose. In legal terms, it seems that many aspects of this right are already given protection. The suggested definition is, moreover, rather underdetermined and is almost guaranteed to give rise to controversy, which may detract from the right’s potential of having symbolic and cognisability value. Still, the underlying values of the right of access to law are too important to leave it at that, and its codification deserves serious consideration. Perhaps a feasible way of doing so would be to codify the principle of legality and extend the right to legal aid to cover access to legal advice services. As explained in Section 43.3, the legality principle can cover access to legal information as well as the lex certa principle, equality before the law and a prohibition of arbitrariness. Moreover, it probably would be possible to define a ‘right to legality’ in terms of a justiciable right, since elements such as legal certainty, foreseeability and the prohibition of arbitrariness already function as standards for judicial review. Such a justiciable right would provide for stronger legal protection than the suggested obligation for the states. Another advantage is that the legality principle is well established in legal doctrine, both in domestic legal systems and in international law and human rights treaties. This may make it easier to come up with a sufficiently precise and generally shared definition that can be usefully applied by international human rights bodies and national courts, and that is less controversial for states.28 Codification of this principle could then be complemented by expressly including a right to access to legal advice or by stating the right to legal aid as a separate right. This right could not only cover (government-financed) assistance by a lawyer in court proceedings, but also legal assistance in accessing and understanding the law. Again, this could be made into a justiciable right. Recognising these new human rights and extending their meaning would not only help all people to be able to know the law, but it would also guarantee a number of essential rule of law requirements. Doing so in a clearly visible way would thereby also contribute to the symbolic significance of the rule of law. Since that, indeed, could only be widely embraced, express recognition of these two rights would seem to provide for a highly useful addition to the existing body of human rights.

28

Although the notions of rule of law and legality spark considerable controversy, it seems there is general agreement on its minimum core; see above, n. 20.

562

563

Index

acceptance of rights, 71 access to law access to information, 557 arbitrariness, 557 codification, 561 control and regulation aspect, 556 costs and practical difficulties, 560 democracy, 555n1 effectiveness, 556 facilitating aspect, 556 foreseeability, 557–558 justiciability, 560 legal aid, 560–561 minimum core obligations, 560 participation, 555n1 rule of law, 555n1 scope, 560 separate recognition, 559 socio-economic nature, 560 access to the Internet, right of, 305 accessibility, 74 accountability, 531, 534 Ackerly, Brooke, 554 African Charter on Human and Peoples’ Rights, 65 African Commission on Human and Peoples’ Rights, 478 African constitutions, 67 African Convention on Human and Peoples’ Rights, 20 African regional system, 65 African Union Convention on Preventing and Combating Corruption, 524 right to democracy, 471 age discrimination, see prohibition of discrimination ageing, approaches to chronological ageing, 180 ‘age of rights’, 49 Albuquerque, Catarina de, 77 Alexy, Robert, 300–301 Alston, Philip, 18–19, 22, 29, 73, 77, 292, 338 American Convention on Human Rights, 65, 303, 421 older persons, rights of, 171

American Declaration of Rights and Duties of Man, 64 older persons, rights of, 170 Anaya, James, 217 animal rights, 9, 31, 244 animal protection, 254 choice-rights, 247 concept, 246 consciousness, 254 constraints on human liberty, 249 deprivation, 248 dereification, 250 Great Ape Project, 9, 244 impact of recognition, 255 individual freedom, 244 interest theory, 246–247, 255 legal balancing, 252 legal relevance, 248 legal status, 244, 251n30, 251–252 level of protection, 247 Non-Human Rights Project, 9 non-personal subjects of law, 256 protection from torture, 244 recognition, 244–245, 248 redundancy, 247 relation between right and duty, 247 right not to be subjected to ill-treatment, 245 right to be taken into account, 251 right to life, 244 role of courts, 258 sentience, 254 status of a person in law, 245 will or choice theory, 246, 255 animal trials, medieval, 256 animals, governance of, 253 Annas, George, 339 anti-corruption treaties, 535 appellative function of human rights, 39 Arab Charter of Human Rights, 15 Arendt, Hannah, 485 Aristotle (rhetoric), 36 Arskaya v. Ukraine case (ECtHR), 405 ascending periodisation, 209–210

563

564

564

Index

Asia-Pacific Economic Cooperation Course of Action on Fighting Corruption and Ensuring Transparency, 524 assisted reproductive technology, 312, 324 Association of Southeast Asian Nations right to democracy, 470 atemporality, 211 autonomy, personal, 194 right to gender recognition, 194 Avena case (ICJ), 445 Benhabib, Seyla, 47 Bentham, Jeremy, 545, 547 Berlin Wall, 63 bioethics, 338–342, 348 Bobbio, Norberto, 337 bodily autonomy, 374 bodily dignity, 374 bodily integrity articulations, 369 as a capability, 368 constitutional law, 371 inclusion of animals, 367 inclusion of other human entities, 367 as an interest, 368 interference, 370 invasion, 370 medical law, 371 objections, 368 principle, 366 tort law, 371 bodily privacy, 374 bodily rights bearers, 375 bodily self-determination, 390 bodily well-being, 374 Bornscheuer, Lothar, 36 Bota Foundation, 528 Boyle, Alan, 158 Bread v. Greene (US Supreme Court), 449 bribery, see corruption, right to freedom from Butler, Judith, 208 Cairo World Conference, 26 Campbell, Tom, 47 Cançado Trindade, Judge Antônio A., 443 CEDAW Committee right to adequate housing, 94 Cerf, Vinten, 281 Chalmers, David extended mind thesis, 380 Charter of Fundamental Rights of the European Union, 185, 305, 508 Christine Goodwin v. the United Kingdom (ECtHR), 209–211 civil society, 23, 33, 531, 535, 537 right of access to gestational surrogacy, 23 right to adequate housing and land, 23 rights of indigenous people, 23 Clark, Andy extended mind thesis, 380

cloning, 331, 335, 341, 346, 348, 349 codification of new rights cognisability, 556 Cold War, 66 right to democracy, 467 collective rights approach, see group rights approach colonialism rights of indigenous peoples, 233 Commission on Human Rights, resolution Right to Democracy, 468 Committee on Economic, Social and Cultural Rights, 15, 315 recommendations de lege ferenda, 120 right to housing and land, 82 Committee on Enforced Disappearances, 432 Committee on the Elimination of Discrimination against Women, 320 Committee on the Rights of Persons with Disabilities, 315 Committee practice, 120 commodity, water as, 59 common heritage of mankind, 55, 340 Common law right to administrative justice, 495, 497 community integration, right to, 179 complaints mechanism, 63 confidentiality, 335 Confucianism corruption, 526 conjoined twins, 370 connecting funtion (rhetoric), 43 consciousness, 243, 243n2 consent, 73 constitutional practices, 66 constitutional protection, 66 consular assistance aliens’ right, 455 gateway right, 455, 456 host state obligations, 453 human right, 453–456, 458, 459 International Court of Justice, 454 operationalisation, 457 procedural guarantees, 456 state of nationality obligations, 453, 456–458 state of nationality’s discretion, 457 systematic interpretation, 459 teleological interpretation, 459 contestation, 40, 71 counter-contestation, 43 contesting function of human rights (rhetoric), 40 Convention on Human Rights and Biomedicine, 342 Convention on the Elimination of all Forms of Discrimination Against Women, 62 Convention on the Elimination of All Forms of Racial Discrimination Rights of Indigenous Peoples, 220 Convention on the Rights of Persons with Disabilities, 15, 63, 409 Convention on the Rights of the Child, 62 Rights of Indigenous Peoples, 220 Cooley, Thomas M., 304 coordination, 535

565

Index corruption, right to freedom from, 533, 534, 537, 538 Bota-Foundation, 528 compensation for victims, 518 Confucianism, 526 Constitutional Convention, 526 Corruption Eruption, The, 519 critique, 528 Giffen case, 528 historical development, 519 human rights reframing, 518, 525 Islamic Law, 527 Locke, John, 525 normative weight, 519 Oil for Food Program (UN), 522 relativism, cultural, 518 rhetoric, 42 Siemens case (US District Court for the District of Columbia), 521 White-Collar crime, 521 Council of Europe, 23, 339 corruption, 524 genetic rights, 342 Cover, Robert, 47 crimes against humanity, 340 criminal law instruments, 531–532, 534 cross-cultural universals, 533 cross-fertilisation, 133 cultural resistance new human rights, legitimacy, 330 customary international law, 11–12, 16n74, 15–17, 18n94, 76, 422 general practice, 12 opinio iuris, 12, 16–17, 20 rarity in new human rights, 13 right to water, 76 state practice, 12, 16–17, 20 traditional custom, 16 verbal acts, 17 d’Aspremont, Jean, 15 Dalit right to housing and land, 92 de lege ferenda, 12 Declaration for Rights for Cetaceans, 244 Declaration on the Protection of All Persons from Enforced Disappearance, 420 Declaration on the Rights of Indigenous Peoples, 221 Delmas-Marty, Mireille, 343 democracy, 531 civil rights, 484 customary international law, 482 enforceability, 482 erosion, 488 individual equality, 484 international human rights law, 484 political rights, 484 post-colonialism, 483 state sovereignty, 483 theory, 486 democracy, illiberal, 474–475

565

derivation, technique of, 277 right to gender recognition, 194 Diallo case (ICJ), 446 differentiated traditionalism, 8, 19, 20 digital divide, 280 digitalisation, 305–306 dignity, 7, 24, 244 right to access to law, 24 right to bodily integrity, 25 diplomatic protection right to consular assistance, 441 discrimination, 335 domestic level, 534, 537 due process right to consular assistance, 443 Durban World Conference on Racism right to adequate housing, 91 Dworkin, Ronald, 300–301, 519 dysphoria, 197 Eastern Greenland case (PCIJ), 234 Economic Commission for Latin America and the Caribbean (ECLAC) older persons, rights of, 174 economic, social and cultural rights implementation, 145 effective remedies, 533, 535–538 E-government, 280 Eide, Asbjörn, 109 El Mozote Massacre case (IACtHR), 172 emancipation rights, 330 emergency phase older persons, rights of, 174 eminent domain, 98 end one’s life, right to, 176 Endorois case (AComHPR), 223 enforced disappearance, 417 arbitrary detention, 419 historic development, 416, 418 international instruments, 420 Latin America, 428 new rights, 421–422 rights, 415, 417–421 Enforced Disappearances Convention, 446 enforcement of human rights, 532–534, 536n16, 538 environmental human right, see right to environment equality, 188 essentially contested concept problems for legal doctrine, 374 ethical reasons, 249 ethos (rhetoric ), 36 eugenic practices, 335 European Charter of Fundamental Rights, 409 European Commission Article 29 Data Protection Working Party, 295, 296n45 General Data Protection Regulation, 294 European Convention for the Protection of Human Rights and Fundamental Freedoms, 14, 20, 25, 64, 342 Rights of Indigenous Peoples, 221 right to internet access, 266

566

566 European Convention on Human Rights and Biomedicine, 345 European Court of Human Rights, 8, 20, 188, 479 right to health, 130 accessible remedy, 551 Airey v. Ireland, 551 Delfi v. Estonia, 274 Editorial Board of Pravoye Delo and Shtekel v. Ukraine, 272 enforced disappearances, 430 Evans v. The United Kingdom, 331 KU v. Finland, 272 Paradiso & Campenelli v. Italy, 321 right to gender recognition, 205 right to internet access, 266 right to health, 318 S.H. and Others v. Austria, 317, 331 Stoll v. Switzerland, 273 European Social Charter, 64 European Social Charter, Revised 1996, 185 European Union General Data Protection Regulation, 306 right to democracy, 472 European Union law animal regulation, 244 evolution of rights, 301, 304–307 evolutionary interpretation, 126, 451 exceptionalism, 8, 16–17, 19 exceptionalism, human rights, 11 extensive interpretation genetic rights, 350 extra-judicial dispute settlement procedures, 121 fair trial right to consular assistance, 443 family state’s vision of, 312 features of law facilitation, 542 regulation and control, 542 Feinberg, Joel, 40 financial institutions, 534 Fitzmaurice, Gerald, 14 Folgerø v. Norway case (ECtHR), 407, 408 forced evictions, 86 foundational conceptualisations relevance for legal argument, 355 fragmentation, 16, 21, 32, 101, 409 Francione, Gary, 244 Franck, Thomas right to democracy, 468 freedom of expression, right to, 300, 303, 304 internet access, right to, 278 positive obligation, 279 freedom of thought cognitive liberty, 395 concept of interference, 394 forum internum, 394 French bioethics Law no 2004-800, 343 French Declaration of Human Rights, 98

Index Gaius, 250 Gallie, Walter Bryce, 373 Galtung, Johan, 8 gender-based violence, 314 gender equality right to adequate housing, 93 gender, non-binary, 199 gene patents, 355 General Comment No. 15 (CESCR), 63, 64, 66, 69 General Comments, 73, 77 legal status, 127 General Data Protection Regulation, 15 general principles of law, 11, 16–17, 18n94 genetic data, 345, 353 genetic discrimination, 354 Genetic Information Nondiscrimination Act, 343 genetic research, freedom of, 355 genetic rights, 31, 338, 345 appropriation of human genetic sequences, 341 benefits, 341, 349 binding instrument, 342 bioconstitutionalism, 350 biparentality, 346, 347n51 confidentiality, 340–342, 344, 349 confidentiality of very sensible personal data, 338 derivative rights, 345, 348 developments, 335, 337, 339, 342, 346–347 discrimination, 340–344, 349 domestic laws, 343 ethical concerns, 357 explicit consent, 344 framework of principles and procedures, 341 future generations, 340, 341, 347–349, 352 genetic information, 335, 340, 341, 345, 346, 348, 349 genetic integrity, 337 genetic testing, 335, 338, 341–343, 345, 346 genetics-based conditions, 346 germline interventions, 342, 346–348 heritage of humanity, 340, 341 human dignity, role of, 352 human genome, 340–341 human reproduction, 356 human rights instrument, 342 identity, 340, 346–349 individual rights, 344 informed consent, 341, 342, 344, 345 integrity, 340, 346–349 legitimacy, 341 nature, role of, 352 need for legal framework, 345 new human rights catalogue, 356 new rights, 345 normative framework, 342 principle of equal treatment, 338 property, role of, 352 recognition, 338, 345, 356 reproductive techniques, 342 responsibility, 341, 347 rhetoric of scepticism, 350

567

Index right not to know one’s genetic characteristics, 340 right not to know one’s genetic information, 345 right not to know one’s genetic make-up, 341 right to be informed, 342 Geneva Conventions, 62 Additional Protocol I, 62 genital integrity, 376 genome editing, 356 gestational surrogacy adoption, 328 artificial surrogacy, 331 conflicting human rights, 331 explicit right, 328 LGBT individuals, social inclusion, 330 right to family and private life, 322 rights holder, 329 state obligations, mandatory, 328 as violation of human rights, 326, 331 Western imperialism, 329 global anti-corruption movement, 533, 538 Golder case (ECtHR), 14 Google Case (ECJ), 293, 297 Great Ape Project, 9, 244 grievance mechanism, 121 group rights approach property rights, 225 rights of indigenous peoples, 224 Guiding Principles on Business and Human Rights, 77, 120 habeas corpus rights, 9, 245 Habermas, Jürgen, 347 habituality (rhetoric), 36 Hadopi case, 267 harmonisation, 535 healthy environment, right to older persons, rights of, 179 Hearn, Lafcadio, 257 Hermogenianus, 249 Hoffmann, Florian, 45 holistic approach, 409 human body conception, 367 human dignity, 74, 209, 211–212, 250, 336–337, 341, 348 basis for new human rights, 543 human exceptionalism, 249 Human Genome Project, 357 human rights, 336, 346, 348–349, 531, 533, 535 biomedicine, 342 conflict between, 327 constitutional rights, 495 cultural change agenda, 330 democracy, 487 distinct from simple rights, 7 expansion, 337 fair process rights, 505 fragmentation, 327 global ‘lingua franca’, 339 high priority norms, 336 Holocaust, 338 individual equality, 487

567

inflation, 357 legal–moral, 486 legitimacy, 336 lingua franca, 351 medical experiments, 338 new generation, 337 new threats, 337 Nuremberg trials, 338 ordinary rights, 274 personhood, 337 public health challenges, 339 recognition, 337 second-generation rights, 494 Second World War, 338 sources, 139 universality, 337, 339 human rights activism, 7, 9 human rights approach, 532–533, 536 human rights commissions, 534 Human Rights Committee, 460, 553 forced disappearances, 430 Human Rights Council right to adequate housing, 84, 88 Working Group on Enforced or Involuntary Disappearances, 429, 434 human rights framework, 532–534, 537, 538 human rights inflation, 154, 543 older persons, rights of, 180 specification, 402 human rights law, 8, 12, 15, 19, 22, 24–25, 29, 32, 532, 532n4, 534, 536n16, 538 human rights bodies, 534 human rights tribunals, 532–534 new protocol, 534–538 status quo, 22 subjects, 213 violation, 531–538 human rights obligations, 534 human rights philosophy reasonable accommodation, 330 human rights treaties, 534–535, 538 Ignatieff, Michael, 544 imperialism right to democracy, 473 implied rights doctrine, 277 internet access, right to, 278 in vitro fertilisation, 312 access, 312 American Convention on Human Rights, 316 discrimination, 315 national laws, 312 recognition, 315 right to health, 318 right to respect for private and family life, 317, 318 right to the highest attainable standard of health, 315 social and ethical dimension, 317 Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation, 75, 77 indigenous and tribal peoples, 65

568

568 indigenous peoples right to adequate housing, 92 individual equality enforcement, 489 indivisibility, 58 indivisibility of human rights right to adequate housing, 95 infant male circumcision, 376 infertility reconceptualisation, 314 infertility treatment gender stereotyping effects, 314 informed consent, 335, 354 intellectual and philosophical origins, 25 right to mental integrity, 25 right to water, 25 intentionalist (rhetoric), 37 Inter-American Commission on Human Rights, 65, 416, 447 Inter-American Convention against Corruption, 519 Inter-American Convention on Protecting the Human Rights of Older Persons, 10, 12, 27, 167 Inter-American Court of Human Rights, 454 Artavia case, 316 enforced disappearances, 430 right to consular assistance, 442 Inter-American Human Rights System, 20, 64 right to gender recognition, 205 interdependence, 58 intergenerational equity, 60 intergenerational justice, 347 International Bioethics Committee, 340 international community, 531, 535–536 International Conference on Water and Sustainable Development, 75 International Convention for the Protection of All Persons from Enforced Disappearance, 422 Committee on Enforced Disappearance, 433 International Court of Justice, 76 2011 Statement, 121 General Comment No. 15, 63 legitimacy, 127 monitoring, 107, 110, 118, 120 treaty interpretation, 121 International Covenant on Civil and Political Rights, 61, 74, 419, 534–535, 538 International Covenant on Economic, Social and Cultural Rights, 61, 72, 74, 184, 534–535, 538 international criminal law, 62 International Declaration on Human Genetic Data, 340 international democracy law, 484 international environmental law, 257 International Labour Organisation Convention No. 107, 219 Convention No. 169, 220, 227–228 international law constitutional quality, 42 International Law Commission, 17 International Network for the Prevention of Elder Abuse, 186

Index international organisations, 9–10, 12–13, 16n74, 16–17 internationalisation, 343 internet limiting freedom of expression, 272 proportionality, role of, 273 threat to human rights, 272–273 internet access, right to digital divide, 280 E-government, 280 freedom of expression, 278 implied rights doctrine, 278 minimum core obligations, 282 objections, 281 positive obligation, 279, 280 standalone right, 280 state practice, 282 vulnerable group, 280 interpretation, 11, 13, 14, 16, 18–20, 127, 558 evolutionary, 11 extensive, 9 object and purpose, 18–19 originalism, 18 teleological, 19 interrelatedness, 58 intimacy, right to, 179 Iran-United States Claims Tribunal, 536 Islamic Law corruption, 527 Italian Constitutional Court, 270 Jasanoff, Sheila, 350 Jensen, Steven L. B., 290 judicial activism, 19, 127 judicial theory, 126 Juridical humanism, 249 juridical person, 248n19, 248–250 jurisgenerative function of human rights (rhetoric), 47 jus cogens, 558 justiciability, 538 Kenya, 502 Kingsbury, Benedict, 217 Kirgis, Frederic, 17 Klitgaard, Robert, 520 Knoppers, Bartha, 344 Knox, John, 156 Koskenniemi, Martti, 42, 49 Kosofsky Sedgwick, Eve, 211 Kumar, Raj, 533 Kurki, Visa, 251 La Rue, Frank internet access, 279 LaGrand case (ICJ), 444 land housing resource, 84 land rights ancillary, 99, 101 collective rights, 99 contents, 102

569

Index cultivation, 98 discrimination, 100 historical development, 97 holistic approach, 101 human right, 102 indigenous peoples, 100 individual property, 98–99 land tenure, 103 natural resources, 102 novelty, 97, 103 plurality, 102 significance, 97 sovereignty, 99 universality, 101 Langford, Malcolm, 61 language of rights in vitro fertilisation, 317 law-making, 9 lawyers, role of, 258 League of Nations Rights of Indigenous Peoples, 219 Lebach case (German Federal Constitutional Court), 301, 306 legal certainty, 11 legal protection of the mind, 393 legal theory, 250 legality, principle of, 555, 559, 559n20, 561 arbitrariness, 559 equality, 559 individual liberty, 559 right to legality, 561 legitimacy, 19 Letsas, George, 18 lex lata, 14–15, 17, 19 litigation, 533, 538 living instrument, doctrine of, 278 Locke, John, 59, 380, 533 corruption, 525 logos (rhetoric), 36 Lyon, Arabella, 47 Macklem, Patrick, 234 Madrid International Plan of Action on Ageing, 169 Magna Carta, 98 Malawi, 502 manipulations, mental, 388 Mar del Plata Declaration, 71, 75 margin of appreciation doctrine, 210 deference to discriminatory practices, 318 ‘Marshall Trilogy’, 218 Mavrommatis Palestine Concessions case (ICJ), 440 Mayer-Schönberger, Viktor, 292 Medellín v. Texas (US Supreme Court), 450 medical ethics, 345 Mégret, Frédéric, 180 mental harms psychological reactions, 393 mental integrity ECtHR, 395 privacy, 396

mental self-determination, 398 freedom of thought, 388 mental states regulatory limitations, 392 metalegal presuppositions, 248 Migrant Workers Convention, 446 Millennium Development Goals, 76 mind bodily boundary, 393 dualism, 391 freedom of thought, 394 human rights law, 388 lacuna in protection, 391 legal status, 387 mind-interventions, 390, 391 modern legal protection, 398 national systems, 388 protection by a right, 398 right to privacy, 388 weak protection, 388 minimum content right to administrative justice, 500 minimum core obligations internet access, right to, 282 moral and social values, 21, 24, 26, 29, 33 animal rights, 24 principle of care, 24 right to adequate housing and land, 24 right to water, 24 movements of landless peasants and rural workers right to adequate housing, 95 Mureinik, Etienne, 505 Myriad case (US Supreme Court), 355 Namibia, 501 national constitutions, 13, 18 national courts, 534 Native Americans ‘Marshall Trilogy’, 218 natural law theories, 533, 537–538 natural persons in law, 249 neo-colonialism right to democracy, 473 new challenges, 24 genetic rights, 24 right to consular assistance, 24 right to internet access, 24 new human rights, 21, 71, 75–76, 336 abstractness, 28–30, 33 actors, 10, 16n74 affirmation, 57 conceptual framework, 25 content, 9, 19–21 contestation, 21, 28, 30–33 criteria, 338 derivation, 11, 13n47, 13, 14, 30, 33, 277, 554 development, 22–24, 28, 30–33 emergence, 8, 10, 12, 19–21, 23–26, 29, 32 epistemic aspect, 21, 28, 30 existing human rights, 21, 24, 26–27, 30–33 human rights, 8, 10–15, 18, 19

569

570

570 new human rights (cont.) idea, 8–10 implementation, 11 inflation, 22, 29–30, 33 justiciability, 57 justification, 22–25, 29, 30, 32, 33 justificatory test, 337 legal status, 7, 13, 19, 20 natural rights tradition, 56 new rights, 337 new treaty, 11, 12 novelty, 21, 22, 26 obligations, 9, 11–13, 16, 19 ontic aspect, 21–22, 28 origins, 22, 23, 33 parent right, 13, 14, 19 practice-dependent approach, 30 profligacy argument, 58 proliferation, 336 protection, 11, 18, 22, 24, 26, 27, 31 protection of human interests, 9 recognition, 7–10, 15, 19, 57 regional, 9, 15, 20 rights inflation, 336 scientific progress, solution by, 331 scope, 13, 14, 19, 21, 26, 31–32 simple rights, 8 soft-law, 57 stand-alone rights, 26, 30–32 theoretical framework, 21, 29 new instrument, 534 new rights, 55, 70, 74, 77, 335, 337, 343, 345–346, 349, 533, 538 derivation, 13, 19 derivative right, 56 international consensus, 338 legal positivism, 56 necessity, 410 need, 337 new threats to privacy, 337 precision, 338 recognition, 19 social value, 338 NGOs, 534–535, 537 Amnesty International, 535 Transparency International, 535 Nicaragua case (ICJ), 17 Nickel, James, 337, 351 Nigeria, 502 Nollkaemper, Andreas, 434 Non-Human Rights Project, 245 non-state actors, 531 norm hardening, 125, 127 norm hierarchy in international law, 8 North Sea Continental Shelf case (ICJ), 16 novelty, 56 genetic rights, 350 judicial deference to the legislator, 451 mental self-determination, 402 model legislation, 452 protocol, 452

Index reproductive rights, 313, 324 right not to be forcibly disappeared, 432 right to administrative justice, 495, 505 right to be forgotten, 291, 301–302, 304 right to bodily integrity, 378 right to environment, 160 treaty, 422 variability, 124 zero-sum, 392 nulla poena sine lege, 558 Nussbaum, Martha, 368 OAS General Assembly, 418 Oil for Food Program (UN) (corruption), 522 older persons, rights of ageing, approaches to, 180 American Convention on Human Rights, 171 American Declaration of the Rights and Duties of Man, 170 Charter (OAS), 170 chronological ageing, 180 Chung report, 173 domestic level, 173 emergency phase, 174 end one’s life, right to, 176 human rights inflation, 180 jurisprudence (inter-American system), 172 non-governmental organisations, 175 pension, right to, 172 regional conferences, 169 resolutions (OAS), 168 sexual health, 179 Summit of the Americas, 167 online and offline content, blocking of, 273 opinio iuris political declarations, 76 Organisation of American States, 9 right to democracy, 470 Organisation of Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 524 OSCE, 265 Challenges to freedom of expression in the new century, 266 Osiatnyński, Wiktor, 352 Ostrowski v. Palmer case (High Court of Australia), 544 Oviedo Convention, 342, 354 European Court of Human Rights, 356 Explanatory Report, 342 ownership, 60 parenthood rethinking of, 330 pathos (rhetoric ), 36 pension, right to, 172 peremptory norm, see jus cogens personhood, 249–250, 252 animal personhood, 256

571

Index choice-rights, 251 human embryos, 251 incidents of legal personality, 250 intermediate legal category, 251 recognition, 252 subjecthood, 251–252 thinghood, 251 traditional view, 250 physical integrity, 363, 366 Pinto de Albuquerque, Paulo substantive right to health care, 131 political change, 23 right to administrative justice, 23 right to consular protection, 23 right to democracy, 23 right to no corruption, 23 rights of the elderly, 23 political will, 535–536 Port of Spain, Declaration of Commitment of, 167 positive obligation freedom of expression, right to, 279 internet access, right to, 279–280 potentiality (rhetoric), 37 poverty, 531 pre-existing rights, 211 pregnancy, 370 Pretty v. UK (ECtHR), 406 principle of democracy consequences, 483 content, 483 customary international law, 484 historical development, 481 moral justification, 489 normative existence, 483 normative type, 483 self-determination, 488 sources, 483 universality, 484, 489 principle of self-determination, 481 principle v. practice, 22 principles theory, 300, 305–306 Programme of Action of the UN International Conference on Population and Development, 75 prohibition of discrimination age, 188 proliferation of rights, 125, 263 proportionality, 199 right to gender recognition, 199 Protocol on Water and Health to the Convention on the Protection and Use of Transboundary Water Courses and Lakes, 63 psychological integrity 395 ECtHR jurisprudence, 397 mental health, 396 quality of law, 553 right of access to law, 552 quasi-judicial institutions, 126 ratification, 11, 13, 15 ratification, lack of, 10

rationality, 248 Rawls, John, 60 The Law of Peoples, 485 recognition, 21, 23, 25–28, 31, 33, 57, 61, 64, 66–67, 531–532, 534, 538 gestational surrogacy, 319 judicial law-making, 294–296 judicialisation, 267 reproductive rights, 313 right to consular assistance, 451 right to internet access, 264, 268 right to land, 96 surrogacy, 319 traditionalist approach, 156, 161 recommendations, 128 recreation, right to, 179 Reding, Viviane, 292 Reisman, W. Michael, 234, 535 relativism, cultural, 11 corruption, right to freedom of, 518 reparations, 536 Report of the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, 279 representative democracy, 475 reproductive rights abortion, 314 abusive state practices, 313 balancing and proportionality, value of, 325 culture war, 329 existing rights, 313, 328 feminism, 324 human rights, doctrinal arguments, 325 infertility, 314, 330 non-discrimination arguments, bolstering of, 317 politics, 324 right to found a family and private life, 324 right to reproductive autonomy, 331 right to the highest standard of health, 324 transnational dialogue, 316 reproductive tourism, 319 res sanctae, 257 reservations, 11, 16n74 rhetoric appellative function, 39 Aristotle, 36 Bornscheuer, Lothar, 36 connecting function, 43 constitutional language, 495 contesting function, 40 counter-contestation, 43 functions of human rights language, 39 habituality, 36 human rights language, 184, 288 intentionality, 37 jurisgenerative function, 47 language of rights, 263

571

572

572 rhetoric (cont.) potentiality, 37 symbolicity, 38 topical approach, 38 triggering function, 45 universality, claim to, 44 Viehweg, Theodor, 36 Wiener, Antje, 41 right not to be forcibly disappeared, 428 Council of Europe, 430 deprivation of liberty, duration, 432 Federacion Latinoamericana de Asociaciones de Familiares de Detenidos Desparecidos, 429 implementation, 422 International Convention for the Protection of All Persons from Enforced Disappearance, 430–431 migration, 435 novelty, 422 private actors, 429 responsibility, shared, 435 right holders, 433 right not to be secretly detained armed conflict, 426 implementation, 424–425 novelty, 423, 426 solitary confinement, 425 right not to be subjected to torture, 15 right of access to gestational surrogacy, 27, 30 right of access to information, 25, 538 right of access to law, 549 right of access to law, 10, 13–14, 25, 28 accessibility and understandability, 545 auxiliary right, 554 effective access, 547 normative content, 544 principle-based approach, 550 right of habeas corpus, 425 right to a certain standard of living, 25 right to a child, 31 right to a fair hearing, 536n16 right to a healthy environment, 10 right to adequate housing, 31, 62 connection between housing and land rights, 93 homelessness, 85 human rights approach, 90 indigenous peoples, 92 international human rights law, 81 landlessness, 85 linkage with land rights, 83 racial discrimination, 91 right to adequate housing and land, 26, 32 right to administrative justice, 25, 31 accountability, 496 Africa, 499, 507 civil law, 501 common law, 501 constitutional right, 498 democracy, 496–497 development, African, 493

Index discretion, 509 effective remedy, 511 empowerment, 496 enforcement, 494, 504 EU case law, 508, 512 EU Ombudsman, 508 European Union, 504, 507 fair process rights, 494, 496 fairness, 510 formulation, 499 fundamental right, 513 future developments, 510 good governance, 498 human right, 513 justification and reasons, 509 minimum content, 500 Namibia, 496 notice and comment process, 497 novelty, 511, 512 objective facet, 508, 510 private actors, 496 procedural guarantees, 508 socio-economic benefits, 497 South Africa, 505 state practice, 503 subjective facet, 508, 512 supra-national level, 498 transparency, 509 right to an adequate standard of living, 26, 58, 61, 73–74 right to an effective remedy, 25 right to be forgotten, 8, 14–15, 287–288 Colombian Constitutional Court, 292 Court of Justice of the European Union, 293 emergence, 292 European Court of Human Rights, 294 forgiveness, 289 freedom of expression, 298–299 Google, 293, 295–296 human rights online, 291 Latin American context, 302 lustration, 290 national law, 295 online identity, 298 origin, 289 principle, generic, 299 private actors, 295–298 rhetoric, 297 right to erasure, 287, 290, 294–295 right to oblivion, 290 right to privacy, 289 truth, historical, 290 right to be free of corruption, 10 right to be left alone, 25 right to be searched for implementation, 426 novelty, 426 right to be warned about genetic risks, 354 right to bodily integrity, 29 body and mind, 379–381 body, interference, environmental, 379

573

Index brainwashing, 382 bundle of sticks, 374 conceptual confusion, 374 conceptual disagreement, 372 conceptualisation, 378 constitutional discourses, 373 context of violations, 365 dignitarian explanation, 373 distinctive form of wrongdoing, 371, 377 interference, mind, 381–382, 384 interpretive differences, 373 justification, 372, 376 metaphorical construction, 375 nature, 363 non-antagonistic interference, 365 normative underpinnings, 372 ownership explanation, 372 philosophical dilemma, 373 political use, 375 relation to freedom from torture and cruel, inhuman, and degrading treatment, 364 relation to health protection, 365 relation to privacy protection, 365 relation to right to liberty and security of person, 364 rhetoric, 363 right of autonomy, 383 right to gender recognition, 198 right to genital autonomy, 375 right to genital integrity, 375 right of privacy, 383 rights, moral, 379, 384 rights, personal, 379, 384 scholarly claims, 371 self-ownership, 380–381 series of rights, 374, 377 sources, 364 transcranial direct current stimulation, 382 violation, 365 right to community integration, 12 right to consular assistance, 7 capital punishment, 445 content, 452 diplomatic protection, 441 doctrine, 440 domestic implementation, 448 due process, 451 European developments, 448 fair trial, 440, 443 human rights quality, 445, 451 IACtHR, 442 ICJ jurisprudence, 444 international jurisprudence, 442 international treaties, 446 origins, 440 positive right, 440 purpose, 439 soft law, 447 United States of America, 442, 444, 449 US Supreme Court, 449 right to consular protection, 25, 32

573

right to democracy, 8, 30, 482 African Union, 471 ambiguity, 487 Association of Southeast Asian Nations, 470 Cold War, 467 Commission on Human Rights, 468 conceptualisation, 475 criticism, 466, 485 European Union, 472 historic evolution, 467, 481 illiberal democracies, 474–475 imperialism, 473 justification, 485 legitimacy, 487 manifestations, 465 moral justification, 486, 487 nature, 485 North–South divide, 473, 480 novelty, 484 Organization of American States, 470 philosophical development, 485 procedural rights, 477 regional jurisprudence, 478 regional recognition, 470 representative democracy, 475 right to democratic governance, 468 self-determination, 488 sources, 486 substantial rights, 478 Western liberalism, 474–475 right to democratic governance, 468 right to development, 8, 75 rights of indigenous peoples, 229 right to environment Africa, 141 America, 143 anthropocentric bias, 154 Asia, 141 core content, 145 customary law, 150 emerging right, 160 epistemic perspective, 160 european developments, 141, 157 historical development, 160 human rights inflation, 154 implementation, 145, 146 International Bill of Rights, 156 ontic perspective, 161 operationalisation, 138 redundancy, 146 regional instruments, 157 rights of nature, 148 Stockholm Declaration, 156, 160 United States, 158 right to family formation European Court of Human Rights, ambivalence, 317 right to food, 61 right to food, housing and property, 27, 74 right to found a family recognition, 311 right to freedom from arbitrary detention, 25

574

574 right to gender recognition, 25 crime prevention, 202 dysphoria, 197 European Court of Human Rights, 205 Human Rights Committee, 204 identity verification, 200 inter-American system, 205 justifications, 199 marriage regulation, 203 national state practice, 205 non-binary gender, 199 parent/basic rights, 194 personal autonomy, 194 proportionality, 199 public morality, 204 right to bodily integrity, 198 right to health, 197 right to privacy, see right to privacy sex segregation, 202 sports regulation, 203 right to good administration, 32 right to have rights, 487 right to health 12, 27, 59, 61, 65, 74 accessibility, 113 availability, 113 core obligations, 110 customary international law, 111, 115, 132 developing states, 113 entitlement, 107 essential medicines, 112 freedom, 107 General Comments, 107, 115–116, 119–120 Human Rights Council, 115 interpretation, authoritative, 120 interpretation, evolutive, 119, 122–123 list of issues prior to reporting, 119 mental health, 115 normative development, 128 obligation to fulfil, 110 obligation to protect, 110, 121, 122 obligation to respect, 109 occupied territory, 118 policies, 120–123 private actors, 120, 122 recommendation, 120 right to gender recognition, 197 right to non-discrimination, 113, 115 rights in armed conflict, 117 rights of prisoners, 116 rights-based approach, 108, 112 sexual and reproductive rights, 114 sexual orientation and gender identity, 115 sexual violence, 117–118 state reports, 107, 116, 119 strict scrutiny, 131 umbrella approach, 132 UN General Assembly, 115 vulnerable persons, 121 right to housing, 61 right to housing and land

Index development, 81 global standards, 83 right to informational self-determination, 343 right to internet access, 11, 13, 28, 31 access to broadband, 271 autonomous fundamental right, 266 autonomous human right, 265 autonomous right, 265, 270, 274 Charter of Fundamental Rights of the European Union, 271 civil right, 269 constitutional recognition, 267 domestic courts, role of, 267 Estonia, 269 European Court of Human Rights, 272 European Union, 269 extensive interpretation, 270 failure to enact legislation, 275 Finland, 268 freedom of expression, 267 freedom of speech, 266, 270 fundamental rights, 264 Internet bills of rights, 263 Italian constitution, 269 Italy, 269 positive dimension, 265 rhetoric of human rights, 268 right to education, 274 social right, 270, 274 justiciability, 274 Spain, 269 treaties, 266 US Supreme Court, 272 right to land, 24–25, 27, 31 lack of legal recognition, 89 right to legal aid, see right of access to law right to liberty, 533 right to life, 60–61, 65, 74 right to life and liberty denial to animals, 254 right to life and personal freedom, 9 right to mental integrity, 25, 29, 392, 404–405 Charter of Fundamental Rights, 395 Clinical Trials Directive, 405 Convention on the Rights of Persons with Disabilities, 405 European Charter of Fundamental Rights, 405 European Convention on Human Rights, 405 Oviedo Convention, 405 right to private life, 405 scope and limits, 406 right to mental self-determination, 10 aim, 407 balancing, 401 combination of existing rights, 409 comprehensive protection, 405 conceptual distinction, 405 drugs, 407 freedom from interference by others, 407 freedom from state interference, 406 Human Rights Council, 401

575

Index justification, 404, 408 limitations, 408 mental privacy, 400, 407 non-interference, 400 protection against negative sanctions for particular thoughts or feelings, 407 scope, 400, 406–407 spheres of special protection, 408 thoughts, 407 vagueness, 410 right to nature, 20 right to non-discrimination, 121 right to physical integrity, 404 right to privacy, 14, 29, 32, 300 decisional privacy, 196 ECtHR, 396 informational privacy, 196 right to gender recognition, 196 right to private life, 210–211 assisted suicide, 406 limitations, 408 positive obligation, 406 social and technological developments, 406 right to property rights of indigenous peoples, 222 right to reproduce or found a family, 27 right to self-determination, 26 right to self-government indigenous peoples, 235 right to sport, 15 right to the highest attainable standard of health, 74 right to water, 15, 31–32, 56, 66 affordability, 74 armed conflict, 71 basic means of survival, 60 consolidation, 57 customary international law, 66 derivative right, 56, 59, 60, 62, 64, 66, 68, 73–75, 77 enforcement, 66 foundational principle, 67 health, 61 housing, 61 human dignity, 60 human right, 68 hybrid right, 74 independent right, 58 legal guarantees, 59 legal standing, 58 minimum amount of water, 59 modern redistributive theories, 60 moral force, 72 normative content, 74 philosophical basis, 58 policy aspiration, 72 priority, 76 private sector, 78 prototype of a new human right, 71 quality, 74 recognition, 55, 56, 60, 62–71, 75, 77 rhetoric, 42 sanitation, 77

575

socio-economic rights, 57, 58, 60–68 state obligations, 59, 63 status, 69 survival, 72 uniqueness, 70, 72 rights inflation, 543 rights of indigenous peoples, 20, 26, 32 American Declaration (2016), 231 assimilationist approach, 219, 226 colonialism, 233 Convention on the Elimination of All Forms of Racial Discrimination, 220 Convention on the Rights of the Child, 220 cultural rights, 229 customary international law, 239 Declaration on the Rights of Indigenous Peoples, 221, 228, 230 free, prior and informed consent, 237 group rights approach, 224–226 historical evolution, 218, 233 ILO Convention No. 107, 219 ILO Convention No. 169, 220, 227, 228 intellectual property, 230 international jurisprudence, 222 legal instruments, 220 non-binding instruments, 221 participation, 237 procedural rights approach, 225 property rights, 222, 225, 231 regional instruments, 221 right to development, 229 right to isolation, 226 right to self-government, 229, 235 self-determination, 228, 235–236 self-identification, 227 sui generis character, 226, 234 territories, land and resources, 230 traditional knowledge, 230 traditional lands, 236 rights of nature, 10, 161 concept, 148 content, 148 environmental human right, 148 implementation, 148 international sources, 150 intrinsic value, 149 national sources, 152 rights of older persons Chung Report, 186 courts, role of, 188 extension or interpretation-based approach, 187 Inter-American Convention on Protecting the Human Rights of Older Persons, 183 Madrid International Plan of Action on Aging, 185 Open-ended Working Group on Ageing, 188 prohibition of discrimination, 188 prohibition of ill-treatment, 188 prohibition of the deprivation of liberty, 188 right to property, 188 rights-based approach, 187

576

576

Index

rights of older persons (cont.) UN Principles for Older Persons (1991), 184 unique stand-alone rights-approach, 186 Vienna International Plan of Action on Aging, 184 World Assembly on Aging, 184 rights of persons with disabilities, 28 rights of the elderly, 27, 28, 31, 32, see also rights of older persons rights, balancing of, 302 rights-based framework, 532 Risse, Mathias, 59 rivers, rights of, 258 Roberts, Anthea, 16 Roman legal tradition, 250 Rome Statute of the International Criminal Court, 536 Rosen, Jeffrey, 297 Ruggie, John, 120 Ruggie’s United Nations Guiding Principles, see Guiding Principles on Business and Human Rights rule of law, 531, 559n20, 561 rules of procedure, 534 rural and urban housing, 89 Ryngeart, Cedric, 18 safe havens, 535 Sanchez-Llamas v. Oregon (US Supreme Court), 450 Saramaka People v. Suriname (IACtHR), 236 Schachter, Oscar, 17 Scheuring, Sabine, 59 secondary norms, 8, 15 secret surveillance measures, 558 self-determination, 195 indigenous peoples, 228, 235, 236 right to democracy, 465, 476, 478 self-determination, personal right to gender recognition, 194 self-determination, racial, 195 Sen, Amartya, 44 separation of powers international level, 125 sexual and reproductive rights, 26 sexual health, rights related to, 179 sexual orientation and gender identity rights, 27 sexual orientation and gender identity/expression, 314 sexual orientation, diverse depathologisation, 314 Shue, Henry, 109 Simma, Bruno, 18, 22 Simmons, Beth, 46 Singer, Peter, 244 social change, 256 socio-economic rights, 64 soft law, 10, 128, 130 soft-law human rights instruments right to adequate housing, 94 source of public international law, 8, 10, 12, 13, 16, 17, 57 South Africa, 501 sovereignty, 532n4, 534–535 Special Rapporteur on the Right to Water and Sanitation, 76–77

standalone right right to internet access, 276 state consent, 11–13, 18, 19 state practice, 76 states, 10 Statute of the International Court of Justice, 17 Stockholm Declaration, 137 right to environment, 156, 160 strategic litigation, 9 subjecthood, 250 surrogacy access to as human right, 321 altruistic practice, 323 children’s rights, 321 dignity of the child, 323 European Court of Human Rights, 321 European Parliament, 320 genetic affiliation, lack of, 321 genetic affinity, 321 Parliamentary Assembly of the Council of Europe, 320 prohibition of, 322 regulation, lack of, 319 regulation, proportionate, 323 Sustainable Development Goals, 76–77 symbolic value of recognition symbolic value of new right, 556 symbolicity (rhetoric), 38 tailored rights older persons, rights of, 174 technological and scientific developments, 24 right of access to (artificial) gestational surrogacy, 24 genetic rights, 24 temporalities interplay, 213 Tillack v. Commission case (ECJ), 512 topoi (rhetoric), 36 traditional knowledge, 230 trans rights acceptance, 212–213 ambiguity of developments, 207 contents, 213 European Court of Human Rights, 209 historical development, 207 novelty, 208 sources, 209 treaty bodies, 7, 10–11, 13, 14, 18 treaty obligations, 533–534 Treaty on the Functioning of the European Union, 185 tribunals, 7, 10, 14, 18 triggering function of human rights (rhetoric), 45 truth commissions, 537 Tully, Stephen, 59 Tysiak v. Poland case (ECtHR), 406 UN Basic Principles and Guidelines on Developmentbased Evictions and Displacement, 87 UN Commission against Corruption, 535 UN Commission on Sustainable Development, 63 UN Committee on Economic, Social and Cultural Rights, 188

577

Index UN Convention against Corruption, 534–535, 538 UN Convention on the Elimination of All Forms of Racial Discrimination, 447 UN Declaration on Human Cloning, 348 UN Declaration on the Rights of Indigenous Peoples, 10, 100 right to adequate housing, 92 UN Declaration on the Rights of Peasants and Other Peoples Working in Rural Areas, 100 UN Department of Economic and Social Affairs, 185 UN General Assembly, 12, 17, 63, 68, 73, 75–76, 447 Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, 265 UN Human Rights Committee, 187, 551 UN Human Rights Council, 63, 73, 75, 532n2 UN human rights mechanisms, 534 UN International Conference on Population and Development, 313 UN Principles on Older Persons, 10 UN Special Rapporteur on Adequate Housing, 82 UN Special Rapporteur on the sale of children, child prostitution and child pornography, 319 UN Water Conference, 62 UNESCO, 23, 339, 348 genetic rights, 339 traditional knowledge protection, 230 UNESCO Declaration, 355 United Nations, 32, 339, 535, 537 international high commission, 535 United Nations Conference on Environment and Development, 75 United Nations Convention against Corruption, 520, 524 Universal Declaration of Animal Rights, 244 Universal Declaration of Human Rights, 61, 184, 187, 336, 339, 459, 558, 559 Universal Declaration on Bioethics and Human Rights, 340 Universal Declaration on the Human Genome and Human Rights, 340, 345

universality, 27–28, 30, 33, 44 urbanisation, 101 US Bill of Rights, 98 US Supreme Court, 271 right to consular assistance, 449 utilitarianism, 24, 33 Velásquez-Rodríguez v. Honduras case (IACtHR), 417 Viehweg, Theodor, 36 topoi, 36 Vienna Convention on Consular Relations, 11, 441 Vienna Convention on the Law of Treaties, 18 Vienna Declaration, 44, 129 Vitoria, Francisco de Indigenous Peoples, 218 vulnerable groups, 12, 186 internet access, right to, 280 war, 558 global, 56 water, right to, see right to water White-Collar crime (corruption), 521 Wiener, Antje, 41 Wirak, Anders, 8 Wise, Steven, 244–245 women right to adequate housing, 92 World Declaration on Great Primates, 244 World Health Organisation, 63, 187, 312 World Summit on Sustainable Development in Johannesburg, 75 Wouters, Jan, 18 Yrusta case (Committee on Enforced Disappearance), 426 Zakharov case (ECtHR), 557 Zimbabwe, 503

577

578

.