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

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.

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.

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 analysing laws that aim to encompass new groups without fundamentally pluralizing universalist and generalist legal concepts.

State obligations to counter Islamophobia: Comparing fault lines in the (quasi) jurisprudence of the HRC/ICCPR, the ECtHR  and the AC/ FCNM  

Islamophobia, like xenophobia, points to deep-seated, ingrained discrimination against a particular group, whose effective enjoyment of fundamental rights is impaired. This, in turn, triggers the human rights obligations of liberal democratic states,  more particularly states’ positive obligations (informed by reasonability considerations). to ensure that fundamental rights are effectively enjoyed, and thus also respected in interpersonal relationships.

The two most core fundamental rights in relation to Islamophobia are the prohibition of discrimination and the freedom of religion. Islamophobia’s underlying intolerance towards Muslims as a religious/ ethnic minority group, also highlights the relevance of minority specific rights, one of the category-specific rights, adding norms for particularly vulnerable groups, further specifying with the effective enjoyment of the general human rights would require.

This paper identifies and compares the fault lines in the (quasi) jurisprudence of three international human rights courts in relation to Islamophobia, namely the Human Rights Committee (International Covenant on Civil and Political Rights), the European Court of Human Rights (ECHR) and the Advisory Committee of the Framework Convention for the Protection of National Minorities. The comparison of the fault lines is structured around to two main strands that can be distinguished when conceiving of strategies that states could adopt in order to counter intolerance: on the one hand the active promotion of tolerance, inter alia through education, awareness-raising campaigns and the stimulation of intercultural dialogue; on the other countering acts informed by intolerance, in terms of the prohibition of discrimination (and/or the effective enjoyment of substantive fundamental rights).

Having regard to the respective strengths and weaknesses of the supervisory practice of these three international courts, the presentation ends with some overarching recommendations.

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.

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.

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.