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Debates on human rights

Human rights have become very popular in international discourse and are used to promote and protect a wider range of policy objectives. Despite this increasing prominence, the gradual proliferation of new human rights claims in law and politics has led to some scepticism and to suggestions for stronger quality controls of these rights.[1] In particular, economic and social rights that emerged relatively recently in comparison to civil and political rights, have remained contested on the ground of feasibility and dependence on political will.[2] While almost all states recognize economic and social rights in ordinary law, establishing amongst other things some form of consumer protection, their acceptance as human rights is controversial.

Those who argue that economic and social rights should not be given the status of international human rights put forward a number of arguments to support their claim, some of which are discussed here. First, they argue, these rights are less ‘fundamental’ than, for example, the rights to life, freedom, and physical integrity.[3] Secondly, and consequentially, the proliferation of human rights would lead to a dilution of existing rights and might conflict with other interests. Furthermore, some scholars maintain that second- and third-generation human rights are resource-dependent and costly, imposing high financial burdens which only wealthy states can afford.[4] The inclusion of such rights would result in the promise of a certain standard of living, which economic circumstances might make impossible to sustain.[5] Instead, the argument goes, the proclamation of new rights can be justified only when the need is sufficiently great, and the chance of acceptance and sustainability is strong.

Other scholars, however, argue that welfare state rights such as consumer rights should be protected as fundamental rights in modern law systems.[6] On the one hand, it is argued, these rights are sufficiently important to be granted the highest possible level of protection.[7] This challenges the idea described before that economic and social rights are only of a ‘secondary’ nature. As previously noted, some scholars have argued that consumers have become more exposed to risks and therefore need additional protection.[8] The broad acceptance of consumer protection by the UN member states (via the Guidelines for Consumer Protection) may be regarded as an indirect support of their stance.

On the other hand, some scholars note that economic and social rights are both similar to, and interdependent with, widely accepted first-generation fundamental rights (i.e. civil and political rights). They are similar to civil and political rights, because these too require positive implementation measures by national states—something which undermines the argument that economic and social rights would be too expensive for most countries, except the wealthiest. Moreover, these scholars argue that economic and social rights and civil and political rights are interdependent as lack of equal protection of the former may undermine the latter.[9]

When it comes to the European context, the recognition of consumer protection in the Solidarity Chapter of the Charter of Fundamental Rights may provide a counterweight to the predominantly economic- and market-based concept of integration of the EU.[10] We will not go further into this general debate here, as these issues will be explored in the following chapter.

  • [1] See P. Alston, ‘Conjuring up New Human Rights: a Proposal for Quality Control’ , (1984)78 American J. Inti Law, pp. 607; J. Raz, ‘Human Rights without Foundations’, in S. Besson &J. Tasioulas (eds), The Philosophy of International Law (Oxford: OUP, 2010), pp. 321-38.
  • [2] For a general description see Fredman, ‘Transformation or Dilution’ (n 3), pp. 41-60.
  • [3] P. Alston, ‘Human Rights and Basic Needs: A Critical Assessment’, (1979) 12 Hum. Rts. J., pp.39 and 45; P. Alston & H.J. Steiner, International Human Rights in Context: Law, Politics, Morals: Textand Materials, 2nd edn (Oxford: OUP, 2000), p. 237.
  • [4] Alston & Steiner, International Human Rights in Context (n 31), p. 16; see also in general M.Cranston, ‘Are There Any Human Rights?’ (1983) 112(4), Daedalus, 1-17. For similar debates inthe field of constitutional law, see G. Bognetti, ‘Social Rights, a Necessary Component of theConstitution? The Lesson of the Italian Case’ , in R. Bieber & P. Widmer (eds), The EuropeanConstitutional Area (Zurich: Schulthess, 1995), p. 85.
  • [5] See e.g. the study by the European Parliament: M. Butt, J. Hubert, & C. Schultz, ‘FundamentalSocial Rights in Europe’, Working Paper, European Parliament, DG for Research, Social AffairsSeries, 11 (1999).
  • [6] See Deutch (n 4), p. 567.
  • [7] Eide & Rosas, ‘Economic, Social and Cultural Rights’ (n 11), p. 17.
  • [8] See Harding, Kohl, & Salmon (n 4); see also Deutch (n 4), p. 567.
  • [9] For a defence of social rights, see C. Fabre, Social Rights under the Constitution: Government andthe Decent Life (Oxford: OUP, 2000),p. 17; M.Weiss,‘The Politics ofthe EU Charter of FundamentalRights’, in B. Hepple (ed.), Social and Labour Rights in a Global Context (Cambridge: CUP, 2002),pp. 73-94.
  • [10] For the wider debate regarding economic and social rights, see M.P. Maduro, ‘L’equilibreinsaisissable entre la liberte economique et les droits sociaux dans l’Union europeenne’ , in P.Alston, DUnion europeenne et les droits de Vhomrne (Brussels: Bruylant, 2001), p. 465.
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