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Human Rights in the European Liberal-Democratic Order : Individual Obligations, Duties and Responsibilities

Book - Dissertation

Even non-lawyers can generally tell you that, as a matter of general principle, rights come with duties and obligations. What they usually mean, is that one cannot simply enjoy the fruits of society, without also contributing to it. The relationship between rights and duties, however, is also a more direct one, and this perspective is more often overlooked: when someone is owed something (when he or she has a right), someone else logically has to owe it to him or her (that person has a duty or an obligation). Without duties and obligations, no rights. Without human or duties and obligations, no human rights. Underlying these relatively simple truths, however, hides a more complex reality. In this dissertation the interplay is shown of burdens of a legal, moral and ethical nature, which play a role in the life of the individual and the State as well as at the international level in the European liberal-democratic order. Liberal democracy entails a society geared towards the protection of individual rights. When rights protection fades, burdens erode and replace them. When the liberal-democratic balance between rights and burdens becomes skewed in favour of burdens, illiberalism is the result. In an illiberal democracy, for instance, democratic procedures may still exist in name and form, but substantive rights protection for all or parts of the population is lacking. In Europe, and elsewhere in the world, illiberalism appears to be on the rise, both in the form of illiberal democracies and illiberal tendencies within still-established liberal democracies. Understanding individual burdens and the role they play in human rights law is thus key to understanding and protecting the liberal-democratic framework. In Europe, the protection of the liberal-democratic model is most embodied by the European Convention on Human Rights and the European Court of Human Rights. While the Convention, mostly for historical and strategic reasons, only confers obligations on States, and not on individuals, a 'shadow theory' of individual burdens can be discerned, underlying the European human rights framework. In the dissertation, this theory is brought out from its shadowy hiding place. In recent years, increasing attention has been devoted to the importance of non-State actors. A number of 'declarations of individual duties' were proclaimed, although their reception by scholars, liberal-democratic politicians and activists was lukewarm at best. The fear of abuse by authoritarian leaders and the perceived threat to the human rights acquis has prevented a greater appeal. A historical overview, however, shows that, for most of human history, burdens were at the centre not only of legal but also of moral thinking. Only recently has this focus shifted to individual rights. With that shift, a focus on burdens became taboo. Literature on the topic can be confusing due to conceptual and terminological vagueness and inconsistency. To resolve this, I start my theoretical analysis with the proposal of a terminology: I refer to legal burdens as 'obligations', moral burdens as 'duties' and ethical burdens as 'responsibilities'. Obligations and duties impose themselves as rules, are a matter of 'yes or no' compliance, are often (but not always) negative regarding inter-personal rights protection, and often (but not always) positive regarding societal claims, leave very little or no room for personal discretion and correspond to someone else's or society's (moral or legal) claim. Responsibilities, on the other hand, find their basis in self-adopted ends, depend on a personal due diligence, are often (but not always) positive, allow for personal discretion, and do not correspond to another person's rights. The end which the individual concerned with 'human' responsibility must adopt, is the substantive protection of individual dignity and of the political framework that guarantees this dignity, i.e., the liberal-democratic society. Responsibility is therefore what has been labeled the 'hidden face' of human rights law, and it plays a crucial role in at least two ways. A first important role is to be found in the identification, at the personal level, of moral rights and duties and, thus, in pre-empting legal rights and obligations. It does this in two ways, depending on whether the right is - what I call - an 'a priori right' or a 'contextual right'. By a priori rights I mean, for instance, some aspects of the right to life, the right not to be tortured, and the right not to be cast into slavery or servitude. The duties and obligations connected to these rights are relatively straightforward. The content of the right is clear, and so is the content of the obligation. Nevertheless, it may in some circumstances still remain unclear which behavior reaches the threshold to trigger an a priori right or duty. To answer this question, a due diligence exercise is required from the individual: Is the way in which I am treating this person 'inhuman treatment'? If so, there is a clear duty and obligation to refrain. A similar exercise is required to separate the non-derogable core of certain rights from the part that can be qualified. With contextual rights I mean rights such as the right to freedom of expression or the right to privacy. They are more akin to 'paramount interests' which need to be balanced with other rights and (liberal-democratic) societal interests. I refer to this second type of rights as 'contextual' rights, as their precise content depends on the context. 'Responsibility' plays an important and even essential role in the identification of these (contextual) rights, and their corresponding duties and obligations. The individual must ask himself where, in each situation, the precise 'balance of justice' lies between, for instance, his freedom of expression, and another person's right to privacy. This 'balance point' will vary depending on context and persons involved. 'Responsibility' is also what helps identify special duties and obligations, lies at the root of the intrinsic motivation required for them, and what provides substance to the positive actions they entail. Aside from serving the identification of rights and duties/obligations, responsibility, finally, also has a second important role. As the 'antennae' of the individual, it allows the individual to substantively answer the dignity needs of both the people with whom an individual is in one way or another in a special relationship, and the framework that protects individual dignity, the liberal-democratic society (State). 'Taking responsibility' here means: going outside and beyond what is required by duty or obligation. Examples are manifold: it is striving to be the parent who answers his child's needs, the son or daughter who helps their ageing parents, the teacher who recognizes what his pupils need, the citizen who supports his community. Of course, one can't be all of those things at all times, or even in one life. That is why 'human responsibility' implies a wide discretion in how it is exercised. Once this framework is clear, other interesting dynamics become clear. Human rights protection, it seems, follows a logic of double subsidiarity. Rather than being top-down, it starts with the individual, with the State as supervisor. Subsequently, and internationally legally speaking, it is the task of the State, with the European Court as ultimate guarantor. Where a priori rights are at stake, neither the individual nor the state have any 'margin of appreciation'. Also the Court, in a way, is bound. However, where balancing acts between different rights and interests need to be made, it seems the discretion exercised by the individual in recognizing the 'point of justice' or the 'sphere of justice' is mirrored by the margin of appreciation left to the State by the European Court of Human Rights. Where individuals fail, national courts will have to do the balancing act. Where States fail, the Court will have to decide. States have to draw the lines, through legislation and judicial practice, for individuals. And, ultimately, the Court draws the line for States. The wider the margin, the more that line will only be drawn in case of manifest violations. A bad father does not necessarily have to be deprived of his parental rights. An abusive one might; a fully absent one could. The lost son may remain lost, if he so wishes. But he cannot neglect his bedridden father with whom he shares a house. An annoying neighbour does not necessarily need to be punished. A threatening one may well have to be. Moreover, by recognizing the role played by responsibility in human rights and human rights law, its role in the preservation of the wider liberal-democratic project can be better understood. Responsibility is what connects individuals to the rights of others, and to liberal-democratic society. It thus provides the individual, simultaneously, with an insight into the fabric of the society which the founding fathers of the European Convention envisaged, and, I strongly suspect, with an antidote to illiberal tendencies.
Publication year:2022
Accessibility:Closed