The International Law Context
During the last 40 years we have experienced a marked increase in cross-border trade and new technologies leading, among other things, to more consumer choice, but also to new risks and growing power of large companies. As a result of these phenomena, consumer law has developed to provide protection and ensure transparency in the market. More recently, consumer protection is also increasingly assessed as a matter of human rights protection. This raises the question of whether consumer protection may become a category of human rights and what would be the benefit of such an international recognition.
Consumer protection as a new generation of human rights?
Human rights, whose birth is traditionally traced back to the French Revolution, developed in waves over time, giving rise to three ‘generations’ of rights. The first generation comprises civil and political rights, such as the right to life and the right to liberty and security, and includes the rights developed in the United Kingdom and France during the seventeenth and eighteenth centuries. These rights are sometimes also categorized as
‘negative’ rights ‘which require only forbearance on the part of others’ as opposed to ‘positive’ rights, ‘which require others to provide goods, services or opportunities’. The first-generation rights have been enshrined in the Universal Declaration of Human Rights 1948 and the United Nations International Covenant on Civil and Political Rights (1966).
The second-generation rights, which were influenced by the revolutions of the early twentieth century and consolidated after the Second World War, were of an economic, social, and cultural nature. These human rights were seen as an instrument, or a necessary condition, to preserve liberty and autonomy in the market. Typical socio-economic rights, such as the guarantee of a minimum living standard, education, and health, were seen as prerequisites for full participation in an autonomous life. These rights are often described as positive rights, characterized by intervention, rather than the abstention, of the state, and were acknowledged in the Universal Declaration of Human Rights 1948 and in the International Covenant on Economic, Social and Cultural Rights of the UN in 1966.
The third generation consists of rights which have not been recognized as international human rights yet, but which were, nevertheless, approved by various organizations of the United Nations. They include the right to development and to peace, environmental rights, and cultural rights.
There has always been a division between the first generation of ‘classical’ human rights, and the second- and third-generation rights founded upon the welfare state and the protection of the individual. The first generation of rights have benefited from a growing recognition in the free democracies and are directly applicable to individuals. In contrast, the second and third generations of human rights often play a subordinate role and remain contested.
Numerous attempts have been made to define the notion and characteristics of human rights. According to Cranston, human rights are genuinely universal moral rights, of paramount importance and of which no one may be deprived without a grave affront to justice.12 Deutch refers to this definition and argues that, consumer rights have the potential to become human rights because they contain a number of the characteristics of human rights.13 In particular, key elements are the wide recognition and universality of these rights, the promotion of human dignity and well-being, and the protection of individuals against more powerful entities such as governments.
According to such a broad description, consumer rights may be regarded as universal rights. First, the rising international recognition of consumer rights and safety standards in international guidelines or treaties shows the universal acceptance of such rights (at least in general terms). Consumer rights also apply to all individuals, as every person is a consumer. Secondly, consumer rights to safe products and access to justice are granted to maintain human dignity and well-being, thus possessing the second characteristics pointed out by Deutch. Thirdly, these rights may protect from arbitrary infringements by governments or other powerful entities. As Deutch argues,14 with the internationalization of trade the large corporations have become increasingly powerful, and consumers cannot bargain on equal terms under fair market conditions, thereby undermining the consumer’s autonomy.15 Defending individuals against more powerful counterparties, consumers’ rights may also possess the third characteristic of human rights. At the same time, as trade has become international, the problem of hazardous goods and defective products is no longer a purely national concern, so that coherent consumer protection standards have to be developed at an international level.
This discussion suggests that consumer protection may develop as a new extension or ‘generation’ of international human rights law, emerging in response to globalization and recent technological evolution. However, as we will see later, the conceptualization of consumer protection as a human rights objective remains controversial. The next section will explore existing
Nijhoff, 1995), p. 15; J. Kenner, ‘Economic and Social Rights in the EU Legal Order’, in T. Hervey & J. Kenner, Economic and Social Rights under the EU Charter of Fundamental Rights: A Legal Perspective (Oxford: Hart Publishing, 2003), p. 2.
international conventions and guidelines, to understand the current legal status of consumer law in the human rights and international law field.