Positive state obligations concerning fundamental rights and 'changing the hearts and minds'

Start date

Thursday, 30 Jan 2020, 14:30

End date

Friday, 31 Jan 2020, 17:00

Ticket information

The conference is free of charge. Registration is required and is possible until 22 January.

On 30 and 31 January 2020 the international conference Positive state obligations concerning fundamental rights and ‘changing the hearts and minds’ will take place at Erasmus University Rotterdam. The conference will cover topics of enduring relevance and growing importance concerning (the reach of) positive state obligations in relation to prejudice and discrimination; and will address these from a multidisciplinary perspective.

Positive state obligations are fundamentally geared at the effective protection of fundamental rights. Over time, these positive state obligations have increased in terms of variety and strength. At the same time, these positive state obligations cannot be absolute.

About the conference

The conference (and the ensuring special issue of Erasmus Law Review) explores how far state obligations go to ensure effective protection against discrimination in interpersonal relationships. How far do states have to go to counter ingrained prejudice and stereotypical thinking? Can states try to change the hearts and minds of people? What relevant parameters have international human rights courts identified so far?

In order to explore this theme fully, three clusters of presentations and articles have been identified: one providing the multi-disciplinary framework, one zooming in on the historical perspective and one that charts the relevant jurisprudence of a range of international human rights courts in relation to four vulnerable groups, often targets of prejudice and discrimination: Roma, women, LGBTI and persons with a disability.

Eleven international speakers will present their draft papers for the ensuring special issue of Erasmus Law Review during the conference. The conference is planned on 30 and 31 January 2020. The conference will consist of four panels: one in the afternoon of the 30th, two in the morning of the 31st and one in the afternoon of the 31st January.

Programme

  • 14.30 onwards:Coffee and cookies
    15.00 to 17.15:Panel 1 (chaired by Kristin Henrard)
    18.00:Dinner (not included, see https://www.eur.nl/en/campus/food-drinks for lunch and dinner options)

     

    • The first panel will discuss three papers. These papers will provide the multi-disciplinary framework of the analysis on positive state obligations in relation to prejudice and discrimination (changing the hearts and minds). This will concern the papers of Stephanie Berry (human rights law perspective), Anita Bocker (sociological perspective) and Ioanna Tourkochorit (ethical perspective). This panel is chaired by Yogi Hale Hendlin.

      • International human rights instruments were adopted in the aftermath of the Second World War in order to prevent a reoccurrence of the atrocities committed in the name of fascism. It has been recognised that these atrocities did not come out of thin air but were the culmination of a slow process of demonisation of groups deemed to be other, not least Jews and gypsies, in public discourse. However, while international human rights law (IHRL) has addressed the atrocities that result from such demonisation, arguably, it has not sufficiently addressed the conditions that allow the negative perceptions of the other to take hold.  At a time when nationalism and populism have again reared their heads throughout the Western world, it is necessary to ask whether IHRL goes far enough to prevent history from repeating.

        This article argues if IHRL is to achieve its purpose then it must be given a far more positive reading and require that States take active steps to challenge the demonisation and othering at the heart of populist movements in order to create resilient, diverse populations. While such a reading is a departure from the minimalist interpretation given to civil and political rights to date, it is compatible with State's undertaking to respect and ensure the rights contained in the International Covenant on Civil and Political Rights. The inclusion of provisions requiring intercultural education and dialogue in the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities and the Council of Europe's Framework Convention for the Protection of National Minorities, suggests an increasing recognition amongst the international community of the need for active measures to change hearts and minds. Nonetheless, if such measures are to be successful, it is vital that they are carefully balanced against other rights, not least freedom of opinion and expression.

        In order to do this, this article first sets out the current approach within IHRL to  the demonisation of the other in public discourse and the impact of such demonisation on the realisation of human rights standards, focusing on UN and Council of Europe instruments. In the second section, it will go on to set out how pre-existing IHRL instruments can be interpreted to support the development of a positive obligation for States to challenge the demonisation of the other and what this positive obligation would entail in practice.  Finally, the implications and limitations of such an obligation will be explored, focusing on the potential for clashes of rights to undermine the aims of the entire project.

        International human rights instruments were adopted in the aftermath of the Second World War in order to prevent a reoccurrence of the atrocities committed in the name of fascism. It has been recognised that these atrocities did not come out of thin air but were the culmination of a slow process of demonisation of groups deemed to be other, not least Jews and gypsies, in public discourse. However, while international human rights law (IHRL) has addressed the atrocities that result from such demonisation, arguably, it has not sufficiently addressed the conditions that allow the negative perceptions of the other to take hold.  At a time when nationalism and populism have again reared their heads throughout the Western world, it is necessary to ask whether IHRL goes far enough to prevent history from repeating.

        This article argues if IHRL is to achieve its purpose then it must be given a far more positive reading and require that States take active steps to challenge the demonisation and othering at the heart of populist movements in order to create resilient, diverse populations. While such a reading is a departure from the minimalist interpretation given to civil and political rights to date, it is compatible with State's undertaking to respect and ensure the rights contained in the International Covenant on Civil and Political Rights. The inclusion of provisions requiring intercultural education and dialogue in the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities and the Council of Europe's Framework Convention for the Protection of National Minorities, suggests an increasing recognition amongst the international community of the need for active measures to change hearts and minds. Nonetheless, if such measures are to be successful, it is vital that they are carefully balanced against other rights, not least freedom of opinion and expression.

        In order to do this, this article first sets out the current approach within IHRL to  the demonisation of the other in public discourse and the impact of such demonisation on the realisation of human rights standards, focusing on UN and Council of Europe instruments. In the second section, it will go on to set out how pre-existing IHRL instruments can be interpreted to support the development of a positive obligation for States to challenge the demonisation of the other and what this positive obligation would entail in practice.  Finally, the implications and limitations of such an obligation will be explored, focusing on the potential for clashes of rights to undermine the aims of the entire project.

      • This paper explores to what extent nondiscrimination law can change people’s hearts, minds and routines. It first examines how socio-legal scholars have theorised and written about the advantages and limitations of law in creating social change. Subsequent sections discuss the findings of empirical research into the social working of nondiscrimination law. Most research has focused on discrimination in the job and housing markets and in the workplace. What conclusions can be drawn from this literature about the efficacy of nondiscrimination law as a mechanism of social change? When, and under what circumstances and conditions can nondiscrimination law be effective? And can it change people’s hearts and minds as well as their routines?

      • Mill’s harm principle is the idea accepted within a liberal regime as to the extent of government intervention within civil society. According to this principle it is legitimate for the state to intervene in order to prevent or restore harm to others. In the area of antidiscrimination law additional difficulties emerge as the harm at stake is not only material. Antidiscrimination law aims to tackle stereotypes and prejudice, ways of thinking that materialise in acts that have discriminatory effects upon some persons who are classified as members of some groups. Stereotypical and prejudicial thinking is wrong and causes harm because it projects characteristics upon a person and dictates attitudes towards a person that deprive him/her of advantages. Harm is in these cases immaterial and hard to measure. The evaluation of a stereotype or a prejudice relates to attributing social meaning and consequences to the acts of social actors. It focuses on the wider social, cultural, historical contexts in which their acts operate and possibly accentuate. Antidiscrimination law aims to tackle a social environment which is demeaning. To demean someone has a social and a power dimension. Evaluating both these dimensions involves serious challenges. This operation of trying to bring about social change by changing collective states of mind implies challenges for liberalism to the extent that it implies evaluating social harm. Changing how human beings think requires an additional justification to the extent that state paternalism is itself demeaning as it means treating citizens as immature human beings. The dangers of sliding into illiberalism is present in all these cases. This paper will attempt to respond to these concerns by tracing a theory of permissible paternalism which I call “soft paternalism”. It will attempt to legitimize state coercion in order to eliminate prejudice and broader social patterns of inequality and marginalization in narrowly limited circumstances. And it will distinguish between appropriate and non-appropriate avenues the state could pursue in order to eliminate prejudice. Policies towards eliminating prejudice should address the rational faculties of a person. They should aim at using methods and techniques that focus on persuasion and reduce coercion. For instance, civil responsibility is highly preferable to criminal responsibility. The version of soft paternalism towards changing minds and attitudes defended in this paper makes it consistent with liberalism.

  • 09.00 onwards:Coffee and cookies 
    09.30 - 11.45:Panel 2 (chaired by Kristin Henrard)
    11.45 - 13.00:Lunch (not included, see https://www.eur.nl/en/campus/food-drinks for lunch and dinner options)
    13.00 - 15.30: Panel 3 (chaired by Kristin Henrard)
    15.30 - 16.00:Panel 4: concluding discussion (by Kristin Henrard Yogi Hale Hendlin)

     

    • Panel 2 will concern the three papers focusing on the ‘long durée’ that countering prejudice often takes. While Renée Romkens zooms in on gender (and particularly gender violence), Anton Kok focuses on equal treatment and equal opportunities for all irrespective of race/ethnicity in post-apartheid South Africa. A third paper in this cluster critically explores the inter-linkage between the development of positive obligations in relation to women and women’s rights on the one hand with public authorities’ policies in relation to nature on the other (Yogi Hale Hendlin, EUR, philosophy). Panel 2 is chaired by Kristin Henrard.

      • The Istanbul Convention (IC)  is a  landmark convention in more than one way. In its content, it marks a crucial step forward in setting detailed international legal standards of obligations states have towards women and men to combat and prevent gender-based violence. The very notion of gender based violence underlines the discriminatory nature of violence against women. It comes as no surprise that during an intensive drafting process between 2009 and 2011, many issues in the IC were the subject of fierce debate and contestation among the forty-seven Member States. From an epistemological perspective gender can be considered as a concept that is ‘essentially contested’. The fact that gender plays a pivotal role in relation to violence in this Convention, has been a recipe for contestation and confusion during the drafting process. This is demonstrated in its subtitle where violence against women and gender-based violence are considered to be two different issues. Based on my expertise as scientific advisory member of the Drafting Commission of the IC (CAHVIO), this paper focuses on the history and background of definitions of core concepts, notably what this means for the recognition of gender and gender-based violence in an international legal context. Developments during the drafting process will be compared to more recent indications of an international gender backlash, notably in the context of the UN Commission on the Status of Women, in which gender is presented as an ‘ideology’.

      • The South African Constitution is arguably a transformative document – aiming at large socio-economic transformation, and changes in South African’s hearts and minds. Pursuant to section 9(4) in the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“Equality Act”) was promulgated. The Equality Act concretises section 9 of the South African Constitution. Section 9 of the Constitution prohibits unfair discrimination by the State and by persons.

        The Equality Act prohibits unfair discrimination, hate speech and harassment in general and unqualified terms – these prohibitions therefore reach into the intimate spheres of life.  The Equality Act contains two chapters on how these transformations (socio-economic transformation and changes in hearts and minds) should be effected; one of enforcement (setting up equality courts) and one on promotion of equality. The entire Equality Act has been published in the Government Gazette but the chapter on promotion is not operational yet. The Equality Act reads that the Minister puts into force sections in the Act on a date published in the Gazette. Most of the Act has been put into force in this way, but not the parts on promotion - in other words, “dead” law - as if it is not even written.  The drafters of the Equality Act probably anticipated that the entire Act would come into force at the same time - “hard” enforcement through equality courts and “soft” enforcement through promotional measures. But as capacity constraints became clear, the promotional part of the Act did not materialise.  When draft regulations were being prepared in relation to the promotional part of the Act, the thinking was that every institution in South Africa would have to prepare an equality plan and send this to the South African Human Rights Commission (SAHRC) - every corner shop, every school, every company, every service provider of whatever kind - millions of plans, in other words. However, the SAHRC simply do not have the capacity to do anything with these plans.  In the absence of a different approach being conceptualised, the promotional parts of the Act remain dead law.

        In this paper we offer some suggestions on how the promotional parts of the Act could be resuscitated and how some contribution to “hearts and minds” transformation could be made. 

        We propose a middle way, where the promotion part could still come into force, without swamping the SAHRC with millions of equality plans (or where very few institutions even bother to submit these plans, or some in-between outcome between these extremes). We focus specifically on schools as one obvious terrain where this project of changing hearts and minds could be implemented.

        We argue that the duties contained in the Equality Act bind private and public schools, educators, learners, governing bodies and the State.  Strategies linked to litigating against unfair discrimination, harassment and hate speech should be buttressed by a proactive approach to promoting equality. We set out how the duty to promote equality should be concretised in the Equality Act to inter alia use the education system to promote equality in schools – in other words, how should an enforceable duty to promote equality in schools be fashioned in terms of the Equality Act – in the form of a dialogue of sorts between civil society, schools’ governing bodies, the Ministries of Education and Justice, and equality courts.

      • Foto van Yogi Hale Hendlin

        In the past century, states have acknowledged that citizenship includes women, with the right to vote as a baseline. In the same period, societies have granted various rights to nature, wilderness, and nonhuman beings. While this may just be coincident with the maturation of the liberal nationstate, in which the extension of obligations previously reserved for the few now encompass increasing more members of society, ecofeminist historians and theorists suggest that state obligations towards nature and women in fact are intertwined. One chief criticism ecofeminists raise against extensionist versions of rights, however, is the doubt that unless the state recognizes the plural nature of its subjects, such legal extensions will collapse the differences of bodies into assimilationist social structures. This paper argues that legal extension of preexisting rights is insufficient, and fails to cover the full obligations the state has towards women. Instead of fostering a reconciliation by redefining relationships between men and women, humans and nature, the 1964 Wilderness Act in the United States, for example, defines wilderness as “an area where man himself is a visitor who does not remain,” creating a "separate but equal" equivalence of protection through artificial removal. This paper examines the emergence of state legal obligations to women and nature in the twentieth century, in the US, Europe, and India, comparing the narratives of assimilationist notions of rights and critically analyzing laws that aim to encompass new groups without fundamentally pluralizing universalist and generalist legal concepts.

    • Panel 3 consists of 4 presentations/ articles that chart the positive state obligations that a range of international supervisory bodies have identified in relation to 4 vulnerable groupsLilla Farkas on the Roma, Kristin Henrard on Muslims (Islamaphobia), and Chantal Proudman on women, more particularly regarding Female Genital Mutilation. Panel 3 will continue with a focus on LGBT (Alina Tryfonidou) and on persons with a disability (Andrea Broderick. Panel 3 is chaired by Yogi Hale Hendlin.

      • The piece focuses on the evolution of the positive obligations doctrine emerging in the field of Roma rights as concerns education and housing, discussing case law from the European Court of Human Rights, the European Committee for Social Rights, the UN Human Tights Committee and the Committee on the Elimination of All Forms of Racial Discrimination.

        While taking a Roma-specific angle, the article also addresses to the overarching research question, i.e. to what extent can positive state obligations be seen to contribute to/set out to change the hearts and minds of peoples in Europe—and more particularly in Central and Eastern European countries where the overwhelming majority of the Roma live. Do these duties set out to achieve attitudinal change only by countering prejudice, or do they necessitate structural changes as well, in public education/housing and social service provision? Do positive obligations require restraint and/or adaptation from majority societies only, or do they also govern the choices of minorities? 

        The choice of education, i.e. integrated education for both majority and minority children has been the subject of debate since the iconincD.H. and Others v the Czech Republic judgment on education. The article explores its overall doctrinal impacts by asking whether the obligation to integrate can essentially override the right to maintain ethnic identity by chosing schools segregated on the basis of ethnicity? Do positive obligations embellish the Roma minority’s quest for a positive ethnic identity (Roma pride) or are they oblivious to minority-specific needs and developments?

        Similar questions can be asked in relation to rulings protecting segregated Roma communities from forced eviction, which may ultimately reinforce social exclusion—which has been the case in practice following Yordanova and Others v Bulgaria, the leading case in the Strasbourg Court. The article will consider the diverse approaches of other tribunals to identical issues and the ways in which balance is struck between minority and majority interests in relation to different social rights. Case law concerning protection from racial violence will serve as a basis for comparing positive obligations as concerns first and second generation human rights

        While highlighting the strengths and weaknesses of the Roma-relevant jurisprudence of various international tribunals, the article feeds into the big picture regarding positive state obligations and the way various supervisory bodies seek to change the hearts and minds of (Central and Eastern) European societies. The article will also consider whether the European Court of Human Rights’ desire to manage its increasing case load and the interests of powerful Western countries wishing to contain the Roma in their countries of origin has also fed into the development of case law. Has positive obligation jurisprudence changed the hearts and minds of Westerners and Easterners by facilitating the European integration project?

        The most well known Roma rights cases deal with school segregation (the so called Roma education cases) and Romaphobic violence (death, bodily injury and forced sterilisation). The first strand has been subjected to doctrinal analysis, because it represents an important passage in the Strasbourg Court’s evolving jurisprudence on (racial) discrimination, while the literature on Romaphobic violence has addressed the failure to find the racial animus as concerns substantive violations.

        The European Court took a robust approach - ordering interim measures to suspend eviction and requiring the state party to legalise settlements to stop on-going violations - when it came to potentially racist practices in Eastern Europe in the 2012 Yordanova and Others v Bulgaria judgment. This was followed by Winterstein et autres c France in 2013, in which the Court transposed its progressive approach to the Western context as well. Equally progressive housing case law emerged form other international tribunals around the same time.

        As far as housing falls within its ambit, Article 8 has provided a platform within the Convention system for the most significant developments of the rights of the Roma and the Travellers. It has done so by kneeding the two ethnic groups into one official category, which has served both well, despite criticism. Since Yordanova and Winterstein, the Strasbourg Court’s positive obligation doctrine has been paralleled by the case law of the European Committee for Social Rights and the UNHRC emergining in response to half a dozen housing related collective complaints and applicaitons for interim measures against forced evictions. The under-utilisation of CERD is also queried.

        As far as the ECHR is concerned, the article seeks to bring the Protocol 2 Article 1 (right to education) and Article 8 strands to the limelight, because they 1. bridge the seemingly special issue of Roma rights and mainstream legal doctrine; 2. show how the principle of equal treatment in Article 14 operates silently throughout the Convention system; and 3. demonstrate the extent to which the Court is willing to broaden the scope to social rights. This analysis then forms the basis of comparison with the jurisprudence of other treaty bodies.

        Community-lead litigation on housing has been steadily growing and the piece concludes that several interlocking factors - judicial activism, institutional considerations, the dynamics of European politics and the most pressing community need - explain why the right to private and family life has become the most important vehicle for collective legal action in the Roma rights context, and a vantage point for the international tribunals’ positive obligations jurisprudence. These positive responses have undoubtedly contributed to the development of a legally more conscious and assertive minority, while causing dismay in various strata of majority societies in the CEE, which is an inevitable reaction to using the law to change societies.

      • Foto van Kristin Henrard

        *

      • Foto van Charlotte Proudman

        In the UK an estimated 65,000 girls are at imminent risk of female genital mutilation (FGM)[1] and globally[2] three million girls are cut every year mainly due to gender inequality. The UK’sFemale Genital Mutilation Act 2003, which replaced The Prohibition of Female Circumcision Act 1985 criminalises FGM. However, there has only been one conviction for FGM as recent as February 2019 whilst criminal cases in other parts of the Western world are rare. This leads to the following questions: Why does FGM continue to be practised when it is a criminal offence? Can the law really engender a social and cultural transformation? What are the barriers to the law being implemented? 
        This article will draw on the first successful prosecution of FGM in the UK and the way in which the press reported the trial. It was presented as a triumph in the media. Yet when reviewing the case in more detail it can be seen that the mother who was convicted had little education, she was from Uganda, she was from a none FGM-performing community, she was poor, an outsider in the dominant community and herself a victim that was punished in the process of the trial and the media reporting of the case, which demonized her. Meanwhile the father was not convicted for the crime due to being a “man” as FGM is construed as a woman’s issue. The case was not a conventional FGM case in that the motivations for performing FGM were related to witchcraft rather than to control the girl’s sexuality. The presentation of the case was simplistic.


        I then move onto outlining the other three FGM trials, which failed to highlight broader structural themes relating to multiculturalism, lack of understanding towards cultural practices and the role of the law in curtailing FGM. Throughout this article, I weave in relevant literature and the timely legal changes to show how these have impacted upon the FGM trials brought before the court. I also draw on women’s and stakeholders’ interviews to highlight how the law has impacted upon the changing dynamics of the practice, as the practice is pushed further underground. The article highlights the clash between the law and cultural practices; the barriers to implementing the law; and the power of culture in undermining the force of law.

      • Foto van Alina Tryfonidou

        Historically, persons with non-heterosexual sexualities (i.e. LGB persons) were considered to be subjects of non-belonging, ‘the other’, and, thus, judged as not worthy of rights. The dominance of heterosexuality as the only legitimate form of sexual orientation and the silencing of all other discourses of sexuality have traditionally legitimised exclusionary laws and policies which completely ignored the existence of sexual minorities and relegated them to a second-rate position. Nonetheless, as human beings, LGB persons have the same human rights as everyone else. This has been recognised in European law (i.e. the law stemming from the ECHR and the EU). Accordingly, as a first move towards LGB egalitarianism, European States have been required – as part of their obligations stemming from European law – to fulfil their (negative) obligations towards sexual minorities, by refraining from violating their fundamental human rights: this has been achieved through the decriminalisation of same-sex acts (ECHR), the equalisation of the age of consent (ECHR), and the prohibition, at State level, of any discriminatory practices based on sexual orientation (ECHR & EU law). At the same time, LGB persons also need specific guarantees against discrimination, if they are to enjoy substantive equality with everyone else. This requires the imposition of positive obligations on States, requiring them to protect LGB persons from discrimination and other hostile acts perpetrated by others which are based on their non-heterosexual sexuality, as well as to promulgate laws which extend to sexual minorities access to numerous civil, social, and cultural rights granted (by default) to their heterosexual peers, such as the right to have their relationships legally recognised. Nonetheless, as will be explained in this article, both the ECHR and the EU have been much more reluctant to impose such positive obligations on European states, claiming either lack of competence (EU) or a lack of European consensus which allows signatory states a wide margin of appreciation (ECHR). The aim of this article will, therefore, be to explore how far European law imposes on European states bound by it positive obligations towards sexual minorities, and, second, to consider whether such obligations should be imposed by European law, especially in contexts where the majority of the population still carries homophobic attitudes.

      • Foto van Andrea Broderick

        The entry into force of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) pushes State obligations to counter stereotypes concerning people with disabilities to the forefront of international human rights law. The CRPD is underpinned by a model of inclusive equality, which views disability as a social construct that results from the interaction between persons with impairments and barriers, including attitudinal barriers, that hinder their participation in society on an equal basis with others. The CRPD’s model of inclusive equality includes a recognition dimension, which together with the Convention’s provisions on awareness-raising, mandates that Parties to the CRPD target stereotypes concerning the capabilities and contributions of persons with disabilities to society. Increasingly, certain human rights treaty bodies, including the Committee on the Rights of Persons with Disabilities and, to a much lesser extent, the Committee on the Elimination of Discrimination against Women voice concerns (implicitly or explicitly) about ingrained prejudices, and require States to eradicate harmful stereotypes about people with disabilities. This trend is also reflected, to a certain extent, in the jurisprudence of the European Court of Human Rights (ECtHR). This contribution assesses the extent to which the aforementioned human rights bodies have elaborated positive obligations that require States to endeavour to change ‘hearts and minds’ about the inherent capabilities and contributions of people with disabilities. It analyses whether these bodies have struck the right balance in elaborating positive obligations pertaining to eliminating stereotypes that underlie inequality and discrimination. Furthermore, it highlights the convergences or divergences that are evident in the bodies’ approaches to State obligations to counter ingrained prejudice and stereotypical thinking about people with disabilities.

    • The final discussions are meant to reach agreement on the red lines running throughout the preceding panels and will be guided by Kristin Henrard (main organiser of the conference and editor of the Special Issue of ELR) and Yogi Hale Hendlin.

Financiers:

Foto van ESL Rethinking the Rule of Law
Foto van Logo - Dynamics of Inclusive Prosperity 16x9
Foto van Logo - Trustfonds 16x9

Registration


 Erasmus School of Law handles your information confidentially. Your data you will only be used for logistical purposes of this event. After this event has taken place, all data will be deleted. More information: https://www.eur.nl/en/disclaimer/privacy-statement.