Credits: Antenor Hallo de Wolf

By Antenor Hallo de Wolf; Melanie Schneider; Beatriz Gomes Batista; and Aila Naysmith

Introduction

The second and final day of the Toogdag 2023 opened with two of parallel sessions that discussed new human rights and future challenges. These panels reflected on the future direction of human rights and looked beyond the horizon of what the UDHR offers and navigated the opportunities related to the development of new human rights and the advent of new technologies and future (energy, economic, and human) challenges.

Human Rights and Future Opportunities in the Digital Age

The first parallel panel the future opportunities that the digital age may provide to human rights and was chaired by Antenor Hallo de Wolf (University of Groningen). The first presentation by Kostina Prifti, Alberto Quintavalla, and Jeroen Temperman (Erasmus University Rotterdam) looked at ‘The interaction between artificial intelligence and human rights: a systematic review of the scientific literature’. This presentation found that there are structural risks that are epistemic and functional risks that are normative when artificial intelligence and human rights interact. They further found that the epistemic problems cause normative issues. The possibility of creating new rights was touched upon, with a particular focus on group protection. Foto Pappa (Sant’ Anna School of Advanced Studies in Pisa) then presented on the opportunities and risks that digitalising farm productivity might bring to human rights, in particular the right to food. She noted that the current dynamics in place (i.e. market concentration, industrial agriculture, and inequalities) are further exacerbated by technological design and barriers (such as cost and infrastructure barriers). Further, the data generated by these technologies would result in dependencies of the farmers on these technologies. Therefore, there is a strong need to question (digital) food policies due to the risks associated with their increased application. Vanessa Tünsmeyer and Marina Markellou (University of Groningen) then presented their research on Article 27 UDHR, cultural rights, digitalised museum collections, and copyright law in Europe. This presentation addressed the challenges that digitalised museum collections carry: for example, the need to strike a balance between protection of copyrighted cultural material (f.e. can a museum visitor take a photo of an art object?) versus guaranteeing access to such material. The authors noted that the EU is making some inroads here to protect the participation in cultural life and enjoying access to art. Still, there are matters that need to be resolved such as protecting the rights of artists against technological developments such as AI image generation. This was followed by Naomi van de Pol’s (Utrecht University) presentation on the following question: ‘Do we need neurorights to protect our mental integrity? An analysis of the ECHR’. In her presentation, van de Pol examined the usage of existing human rights to determine whether their scope extends to mental privacy, the revisitation of human rights to broaden their scope as well as the option of creating novel human rights: neurorights. She concluded that the European Convention on Human Rights (ECHR) does provide some protection against neuro interventions in Articles 3, 8 and 9 ECHR, but also noted their limits. However, for a more robust protection, the creation of new neural rights is the best option. 

New Rights and New Responses to Future Challenges

The second parallel session of the day focused on new rights and new responses to future challenges, and was chaired by Roland Moerland (Maastricht University). Marlies Hesselman (University of Groningen) opened the panel with her presentation on ‘The human rights to affordable, clean, modern energy services: A new right for the 21st century at the crossroads of the climate crisis and energy transition’. In the context of the energy transition, Hesselman found that the concept of the right to energy offers a framework for preventing new experiences of energy poverty but may come into tension with decarbonisation objectives. The next presentation by Luiza Leite de Queiroz (Vrije Universiteit Amsterdam) was entitled ‘A link without a right, or ubi nexus, ibi ius? International human rights instruments & (international) fiscal policy’. Her research focused on the extent at which international human rights law provides a suitable framework to mitigate the inequalities introduced by the international tax regime. She found that while there is a general link between taxes and human rights, the existing human rights legal framework does not create a straightforward link between taxation and specific (socio-economic) rights. Domestic litigation itself is not the answer, as decisions cannot transform the taxation regulation on an international level. Furthermore, there is a mismatch between norms designed at international level and the remedies available to dispute them. The final presentation, given by Cristiano d’Orsi (University of Johannesburg) (online) focused on Article 14 UDHR dealing with the right to seek and enjoy asylum, and pondered upon the meaning of the expression ‘enjoy asylum’. According to d’Orsi, the African Charter on Human and Peoples’ rights refers to this expression as well entailing that once asylum has been granted, there is a right to ‘enjoy’ it. However, African states in their asylum practice tend to rely on other legal instruments dealing with the issue of asylum and which do not refer to this expression. He argues that in the face of eroding protection of asylum seekers, it is important that human rights should serve to reinforce refugee protection and to define and give meaning to the “right to enjoy asylum” component of Article 14 UDHR.

Round table discussion

The parallel panels were followed by a roundtable discussion involving speakers from the previous sessions, who together reflected on the future of the UDHR. The roundtable discussion was chaired by Lottie Lane (University of Groningen). The speakers were Vanessa Tünsmeyer, Luiza Leite de Queiroz, Marlies Hesselmann, Foto Pappa, and Kostina Prifti. The discussion first centred around the panellists' pessimism or optimism on the future of the UDHR. All participants provided nuanced answers in that they were both optimistic and pessimistic, with Pappa being more optimistic than her fellow panellists. The pessimism stemmed from political challenges that continuously test the strength and persistence of human rights, as well as how realistic our aspirations for human rights actually are, and how much of our aspirations we can actually accomplish. Lane then inquired about the panellists' confidence in the international human rights framework to address the goals of the UDHR. While Pappa demonstrated optimism, despite the strong challenges presented by digitalisation and technology, Leite de Queiroz had doubts in the international framework’s abilities. Having worked in development cooperation, she reflected on her experience of working with individuals who don’t know what human rights in fact are. She stated that we haven’t done a good job of translating this framework to other areas, which resulted in the spaces this framework currently occupies not being used to their full potential. This, according to Leite de Queiroz, is the next task of the new wave of researchers in the field of human rights. Prifti, reflected that the UDHR is not the only framework available to us, and that a broader scope of tools should be utilised in implementing and enforcing human rights. Tünsmeyer, in turn, disagreed with this, and argued that abandoning the human rights approach ship is not the way to go. Instead, she posited that the human rights framework itself is not the problem, but rather the international law one: public international law suffers from fragmentation, affecting the translation of human rights standards to other legal fields that determine the actions of actors in that field. In her response, Hesselman reflected on the UDHR’s impressive record and argued that most of the UDHR rights are still very much up to par. However, human rights are not just practical but also scientific, so it is logical that there will always be a way to improve the framework, and that should be the case. Hesselman doesn’t doubt that the framework can address the new challenges, but wondered whether we can get there fast enough. Following up on this, Lane questioned the panellists on their opinion of whether we need more rights or whether we can work with what we have. Leite de Queiroz, Tünsmeyer, and Pappa shared scepticism towards the creation of new rights, particularly since we are currently struggling to interpret the ones we have. Hesselman instead argued that new challenges demand new solutions, as is the case with the energy transition, for which she argues there should be a right to energy. Prifti sided with Hesselman but added that the creation of new rights shouldn’t be a purpose in and of itself.

Keynote speech and concluding remarks

The second and final day of the Toogdag 2023 was closed with a keynote speech by Prof. Theresia Degener (Protestant University for Applied Sciences of the Rheinland-Westfalen-Lippe, and former Chairperson of the UN Committee on the Rights of Persons with Disabilities) on ‘the human rights model of disability in times of emergency’. In her speech, she reflected on the Convention on the Rights of Persons with Disabilities (CRPD)’s framework in times of emergency and the national response to the adoption of a triage law by the German parliament in 2022 that regulates the procedure hospitals are to follow in case of medicine shortages in emergency situations, and which negatively affected persons with disabilities. Her presentation reflected on the judgment of the German Federal Constitutional Court that triage must be formally regulated through legislative acts. The case came after several disabled persons filed a constitutional complaint against German medical associations that allowed for discrimination of disabled persons during triage situations. After a long and arduous legal battle, the German Federal Constitutional Court called for increased protection of, inter alia, disabled persons through practices of non-discrimination. Degener’s closing keynote speech should alert us at the fact that the project started by the UDHR 75 years ago, still requires continuous commitment and action, to address similar and future challenges. Arguably, this is one of the most important things that the participants of the Toogdag 2023 were able to take away.