For many years, fundamental rights were primarily protected in the European Union (EU) legal order in a negative way; EU institutions and Member States should not infringe fundamental rights when acting within the scope of EU law. However, since the Treaties of Amsterdam and Lisbon, the EU has gained greater competences to develop fundamental rights standards, and new mechanisms for the protection of these standards have emerged. Although these new instruments enhance the mandate of (...) the EU regarding fundamental rights protection, they also trigger a number of important questions. They are capable of calling into question, to an unprecedented extent, sensitive domestic policy areas through a rights-based process of Europeanization. Furthermore, the EU regime for the protection of fundamental rights is increasingly difficult to contain within the limits of the traditional principle of attributed competences that was initially designed to circumscribe the process of European integration. Both types of questioning trigger significant resistances at the EU as well as national level. (shrink)

Starting from the impossibility of understanding fundamental rights from the standpoint of natural law doctrine or positivism, the author tackles the issue of rights from a realistic point of view, that is to say from the perspective of law and politics on the one hand, and from the perspective of public morality, on the other. Thus the foundation of fundamental rights is the meeting point of conceptions of social morality that are current in the modern (...) world and the political aspect of the conception of pluralist democracy. Moreover, fundamental rights are considered an instrument to enable the social and moral development of human beings. (shrink)

This paper discusses the views of Wheeler and LaFollette on the right to bear arms. It argues, with LaFollette and against Wheeler that the right to bear arms is derivative and not a fundamental right. My argument pivots on the idea that Wheeler's account of what makes a right fundamental is too broad.

The development of the Area of Freedom, Security and Justice has transformed the European Union and placed fundamental rights at the core of EU integration and its principles of mutual recognition and trust. The impact of the AFSJ in the development of an EU standard of fundamental rights, which has come to the fore since the Treaty of Lisbon, is a topic of great theoretical and practical importance. This is the first systematic academic study of the (...) AFSJ and its implications from the point of view of fundamental rights. The contributions to this collection examine the normative and jurisprudential development of the AFSJ in order to assess its effects on the overall construction of the scope and standards of protection of EU fundamental rights in this particularly complex and sensitive field of integration. The expert contributors systematically map and critically assess this area of EU law, together with the relevant case-law. (shrink)

The Supreme Court’s antiabortion opinion in Dobbs v. Jackson Women’s Health Org., which overruled Roe v. Wade and Planned Parenthood of S.E. Penn. v. Casey, on the one-hand suggests that the Court may be moving toward eliminating all non-enumerated fundamental rights not deeply rooted in the Nation’s longstanding history and tradition. On the other hand, it may suggest only that the Court might be just opening the door to overruling specific non-enumerated rights with which it no longer (...) agrees. Either way, many long-recognized, non-enumerated, human rights, beyond abortion that are essential to individual autonomy and human dignity are now up for grabs. Such rights in the area of privacy law will most likely include not just abortion, but also contraception, interracial marriage, and the Court’s more recent recognition of same-sex marriage, and possibly still other precedents, including whether states can criminalize adult consensual same-sex behavior in private. More importantly, the proposed foundation for this Court’s potential departure from its past case precedents cannot be justified even by claiming such rights are not deeply rooted in the Nation’s history and tradition. As I hope to show in this article, neither from the point of view of looking to this Nation’s longstanding history and traditions, if properly understood, nor from the point of view of allowing Equal Protection to aide in identifying forms of discrimination not previously recognized or afforded much attention, can departures from past human rights precedents based in autonomy be justified. (shrink)

This article seeks to address the manner in which we should conceptualise the duties of directors in making decisions where fundamental rights are at stake. We first attempt to show that, in making decisions that implicate fundamental rights, directors are required to consider all individuals affected as having an intrinsic dignity. The interests of non-shareholders must thus be addressed in a non-instrumental manner which, we argue, is only compatible with the adoption of a ‘stakeholder’ conception of (...) directors’ duties. Adopting such an approach, however, raises the difficulty of how directors are to balance multiple intrinsically valuable interests. We argue that the doctrine of proportionality—which has been developed in fundamental rights law as a structured enquiry concerning the circumstances in which it is justifiable to limit rights—can be adapted to the domain of corporate decision-making. The proportionality enquiry provides a transparent, structured process of reasoning that can aid corporate decision-making and open up the possibility for reviewing decisions of directors that affect the fundamental rights of individuals. (shrink)

In fundamental rights adjudication, should judges defer to the judgment of other decision makers? How can they defer, without betraying the respect that judges ought to accord those rights? How can they refuse to defer, without betraying the respect that judges ought to accord to other decision makers? I argue that only principles of comity justify deference, and their reach is limited. Comity never forbids the judges to take and to act upon a different view of (...) class='Hi'>fundamental rights from that of another decision maker. I elaborate this view by reference to the decision of the House of Lords in Adan and Aitseguer [2001] 1 All ER 593. (shrink)

Genetic intervention is on the near horizon for the treatment of substance abu se. Genetic intervention involves a reprogramming of a person’s own genetic instructions so that that person will no longer have the physical craving for the drug of choice. Unlike pharmacologic intervention, genetic intervention will change the genetic identity of the person, albeit slightly. The legal issue is whether one has a fundamental right to this medical procedure. A fundamental right is one that the government cannot (...) deny without a compelling interest. The case law indicates that the right o f medical necessity applies when the person’s affliction is serious, there are no reasonable or effective alternatives, the person did not intentionally cause the condition, and the treatment is effective for the long term. Unlike the medical marijuana ph enomenon, genetic intervention is per se anti - drug, unrelated to illegal, recreational drug use, and on its face has a medical use. Legal doctrines to date though not directly on point are conceptually compatible with the existence of a fundamental right of medical necessity for genetic intervention. (shrink)

A TRADITIONAL VIEW OF UTILITY AND RIGHTS According to a conventional view, no project could be more hopelessly misconceived than the enterprise of attempting a utilitarian derivation of fundamental rights. We are all familiar – too familiar, perhaps – with the arguments that support this conventional view, but let us review them anyway. We may begin by recalling that, whereas the defining value of utilitarianism – pleasure, happiness or welfare – contains no mention of the dignity or (...) autonomy of human beings, it is this value which utilitarianism in all its standard forms invokes as the criterion of right action. Worse, insofar as utilitarian policy must have as its goal the maximization of welfare conceived as an aggregate summed over the utilities of everyone affected, legal and political utilitarianism seems bound to have a collectivist bias, trading on the dangerous fiction of a social entity and ignoring the distinctness of separate selves with their several incommensurable claims. It seems that, if individuals can appear in the utilitarian calculus at all, it will only be as ciphers, abstract place-holders for units of welfare. For, as an aggregative value, utility must be indifferent to distribution, and insensitive to the preeminently distributive considerations marked by claims about rights. So, if whatever has utility can be broken down into units or elements which are subject to measurement or at least comparison by a common standard, then it will always be possible that a very great loss of welfare for one man or a few men can be justified if it produces a great many small increments of welfare for a vast multitude of men. (shrink)

The present volume, _Smart Technologies and Fundamental Rights_, contains fourteen outstanding and challenging articles concerning fundamental rights and Artificial Intelligence at the intersection of law, ethics and smart technologies.

Among the various experiments in ‘new governance’, the model of Responsible Research and Innovation is emerging in the European landscape as quite promising. Up to now, there have been two versions of RRI: a socio-empirical version which tends to underline the role of democratic processes aimed at identifying values on which governance needs to be anchored and a normative version which stresses the role of EU goals as ‘normative anchor points’ of both governance strategies and policy making. Both versions are (...) unsatisfactory. The first since it suggests movable anchorage which could clash with prefixed values, such as individual rights. The second since it does not safeguard fundamental rights in the process of balancing ‘anchor points’. This result is counterintuitive because it exposes governance to the risk of facing adverse court decisions in the defense of individual rights, thus losing its anticipative attitude. In order to avoid this outcome, the paper argues that it is only through better integration between the system of human rights and that of EU fundamental rights that the anticipative feature of RRI can be preserved. (shrink)

European legislators must increasingly deal with issues related to fundamental rights. Religion is a frequent topic obliging them to do so. It is not directly part of the EU’s competences but is a source of values underlying policy choices and a tricky political object. Relying on the findings of a survey about what Members of the European Parliament believe and what they do with these beliefs, the article analyzes potential tensions created by religion in the implementation of human (...) rights by the EU. A first part shows how and to what extent European law meets religion, and how it leaves ample room for flexibility but also for divergent interpretations. A second part states that MEPs agree largely on the principle of separation between politics and religion, but may be divided when it comes to drawing boundaries between the two domains. The conclusion points out the limits of the rule of law to prevent conflicts and suggests that human rights may inspire support as well as cause resistance to Europeanization. (shrink)

In their recent article, Brownet alanalyse several ethical aspects around immunity passports and put forward some recommendations for implementing them. Although they offer a comprehensive perspective, they overlook two essential aspects. First, while the authors consider the possibility that immunological passports may appear to discriminate against those who do not possess them, the opposite viewpoint of immune people is underdeveloped. We argue that if a person has been tested positive for and recovered from COVID-19, becoming immune to it, she cannot (...) be considered a hazard to public health and, therefore, the curtailment of her fundamental rights (eg, the right to freedom of movement) is not legitimate. Second, they omit that vaccine distribution will create similar problems related to immunity-based licenses. Vaccine certificates will de facto generate a sort of immunity passport. In the next phases of the pandemic, different immunity statuses will be at stake, because the need to identify who can spread COVID-19 is unavoidable. If a person does not pose a threat to public health because she cannot spread the infection, then her right to freedom of movement should be respected, regardless of how she acquired that immunity. (shrink)

The treaty of Lisbon makes European Union (EU) accession to the European Convention on Human Rights (ECHR) an obligation of result. The issue has been intensely discussed for more than thirty years, arguing that such accession is necessary in view of the need to ensure the ECHR standard of fundamental rights protection in Europe. This question again gains prominence as the EU member states and the institutions seek to agree on the negotiation directives of EU accession to (...) the ECHR. The process brings up the difficulties involved in creating a mechanism which would both facilitate the autonomy of the EU legal order and enable individuals to bring claims against the EU to the European Court of Human Rights (ECtHR). This involves the questions how it would be possible to ensure quick access to justice, and whether the ECtHR would continue to apply the doctrine of equivalent protection in relation to EU even after the latter becomes bound by the ECHR. The article argues that EU accession to the Convention is a prominent political step ensuring coherence of human rights protection mechanism in Europe. (shrink)

Abstract Democracy is a fundamental right linked to the realization of a person’s worthy life project regarding its corresponding fulfillment of Human Rights. Along with the procedures to form political majorities, it is mandatory to incorporate the substantial part as a means and end for the normative content of Human Dignity to be carried out allowing it to: i) freely choose a project of valued life with purpose and autonomy ii) to have material and intangible means to function (...) in society; and iii) to live free from harm and fear in order to achieve human flourishing. The integral democracy is a means and an end to materialize individual happiness and the common good as long as everyone has concrete opportunities to unfold its inherent human dignity capacities within the trademark of the democratic constitutional State. Assuming this, integral democracy is the fundamental right of Fundamental Rights. (shrink)

The development of the Area of Freedom, Security and Justice has transformed the European Union and placed fundamental rights at the core of EU integration and its principles of mutual recognition and trust. The impact of the AFSJ in the development of an EU standard of fundamental rights, which has come to the fore since the Treaty of Lisbon, is a topic of great theoretical and practical importance. This is the first systematic academic study of the (...) AFSJ and its implications from the point of view of fundamental rights. The contributions to this collection examine the normative and jurisprudential development of the AFSJ in order to assess its effects on the overall construction of the scope and standards of protection of EU fundamental rights in this particularly complex and sensitive field of integration. The expert contributors systematically map and critically assess this area of EU law, together with the relevant case-law. (shrink)

The development of the Area of Freedom, Security and Justice has transformed the European Union and placed fundamental rights at the core of EU integration and its principles of mutual recognition and trust. The impact of the AFSJ in the development of an EU standard of fundamental rights, which has come to the fore since the Treaty of Lisbon, is a topic of great theoretical and practical importance. This is the first systematic academic study of the (...) AFSJ and its implications from the point of view of fundamental rights. The contributions to this collection examine the normative and jurisprudential development of the AFSJ in order to assess its effects on the overall construction of the scope and standards of protection of EU fundamental rights in this particularly complex and sensitive field of integration. The expert contributors systematically map and critically assess this area of EU law, together with the relevant case-law. (shrink)

This book addresses the pressing issue of severe poverty and inequality, and asks why is it that violations of socio-economic rights are treated with less urgency than violations of civil and political rights, such as the right to freedom of speech or to vote? It provides a sustained argument for placing renewed focus on socio-economic rights as a method of ensuring that governments address extreme poverty. It combines both theoretical and practical perspectives, political philosophy, and constitutional law (...) and policy. (shrink)

This history of exclusion from basic rights in South Africa until fundamental rights of every individual were entrenched in the constitution illustrates that respect for sanctity of every person is the basis of the freedom of all the people of South Africa and that all religious communities should protect the Bill of Rights. Neither confessional nor denominational considerations should be put to the fore; the focus should fall instead on the common concern of all religions for (...) the sanctity of the individual. (shrink)

This essay re-examines some key fundamentals of the Enlightenment regarding individual rights, responsibilities and republicanism which deserve and require re-emphasis today, insofar as they underscore the character and fundamental importance of mature judgment, and how developing and fostering mature judgment is a fundamental aim of education. These fundamentals have been clouded or eroded by various recent developments, including mis-guided educational policy and not a little scholarly bickering. Clarity about these fundamentals is more important today than ever. Sapere (...) aude! (shrink)

The purpose of this inquiry is to point to some unclearities and contradictions inside the framework of the Charter of Fundamental Rights of the European Union. This inquiry is based on the philosophical analysis of some basic concepts employed in the Charter of Fundamental Rights. The four concepts ( dignity, freedoms, equality and solidarity ) which are presented in the preamble of the Charter as “indivisible and universal values” will be analyzed. On the other hand, the (...) definition and the scope of rights guaranteed by these values will also be examined. It will be argued that those values reflect modernist political liberalism and its universalist and metaphysical assumptions. (shrink)

This article critically evaluates the possible impact of the Charter on the relationship between the Court of Justice of the European Union and national constitutional courts. While it is premature to provide a definitive assessment of the kind of collaboration that these courts will develop, it is crucial to identify a number of features of the new landscape that will influence the direction in which the relationship between the CJEU and constitutional courts will evolve. This article discusses several reasons that (...) may result in better or a higher number of judicial interactions, as well as factors that may create tension or cause problems in the relationship between the CJEU and national constitutional courts. As such, it offers a framework that may help us to understand future post-Charter judgments by these courts setting out how they conceive their engagement with their counterpart on fundamental rights issues. (shrink)

In the international sphere, sovereignty and fundamental rights are often at odds, giving these rights little space for action and, in general, only after crisis has led to tragedy, and tragedy to disgrace. International Law, on the other hand, consistently succumbs to forms of domination and power, and its scope of action is often limited to certain codifications which are frequently suspended by political exception. Sixteenth century Dominican theologian, Francisco de Vitoria, established the principles for a Law (...) of the people, based on secular civil power that, while still exercising internal sovereignty, could defend and privilege the “rights of all men” over the exercise of power and private interest. This article focuses on this dispute to show Vitoria’s position, who long preceded the great declarations of human rights of the 18 th century, presenting an original doctrine within the framework of an emerging globalization and based on the defense of fundamental rights. (shrink)

This article analyzes how the development of the European Union fundamental rights policy feeds Euroscepticism—and notably political Euroscepticism—within segments of national political elites in EU Member States. More specifically, it argues that this relatively new policy also gives rise to a new form of political Euroscepticism, which has been defined as “value-based Euroscepticism,” e.g., the perception that the EU via its fundamental rights policy, unduly interferes in matters where value systems and core domestic preferences on ethical (...) issues are at stake. This happens in a context where the EU is resented, by some segments of political elites, for allegedly empowering diverse groups at the expense of popular sovereignty. This resentment is exacerbated by the fact that national governments are increasingly submitted to the critical assessment of EU-level actors in terms of democratic credentials. (shrink)

This paper offers a critical analysis of two central issues in Luigi Ferrajoli’s Principia iuris , and more generally of his theory of rights. One is the way in which ‘expectations’ play a crucial role in his deontic theory by establishing the logical basis for his guarantee-based conception of law and rights. The axiomatic way in which Ferrajoli arrives at his conception of fundamental rights is questioned, for it fails to give a full account of the (...) nature of subjective rights. The other issues discussed here is Ferrajoli’s own defence of the universality of fundamental rights, and how this is made to depend on a ‘normative technique’ that one can associate with legal discourse and modern law in Western societies. This, however, poses the problem of how this formal universalism can be reconciled with the intercultural dialogue that Ferrajoli also advocates. (shrink)

RESUMEN: El presente trabajo propone un análisis de los Derechos Fundamentales de los pueblos indígenas a la luz de los principios internacionales de Libre Determinación y Consulta Previa, como fundantes y presupuestos de los demás Derechos Indígenas. En consecuencia, se analiza el Derecho a la Consulta, que debe ser previa, libre, informada, de buena fe, culturalmente adecuada y con el propósito de obtener el consentimiento; donde todas éstas características son el estándar mínimo a cumplir en cualquier proyecto de desarrollo o (...) extractivo que afecte a pueblos indígenas, por lo que debe explicarse también el extractivismo al interior de los estados-nación y su modus operandi, que ha provocado la existencia de zonas y regiones que algunos autores caracterizan como “estados de excepción” o estados de “de no-derecho”. El análisis propuesto contrasta las bases mencionadas con algunos casos llevados ante la jurisdicción del Sistema Interamericano de Derechos Humanos, cuya última fase descansa en las sentencias de la Corte IDH.ABSTRACT: The present paper proposes an analysis of the Fundamental Rights of the indigenous peoples in the light of the international principles of Free Determination and Prior Consultation, as foundations and budgets of the other Indigenous Rights. Consequently, the Right to Consultation is analyzed, which must be prior, free, informed, in good faith, culturally appropriate and with the purpose of obtaining consent; where all these characteristics are the minimum standard to be met in any development or extractive project that affects indigenous peoples, so the extractivism within the nation-states and its modus operandi, which has caused the existence of zones and regions that some authors characterize as "states of exception" or "non-right" states. The proposed analysis contrasts the mentioned basis with some cases brought before the jurisdiction of the Inter-American Human Rights System, whose last phase rests on the judgments of the Inter-American Court.PALABRAS CLAVE: Libre determinación y consulta, Derechos Fundamentales, pueblos indígenas. KEYWORDS: Free determination and consultation, Fundamental Rights, indigenous peoples. (shrink)

This Article uses major and recent CJEU labor law case as a springboard to examine and critique the CJEU’s doctrinal frameworks, conceptual constructs and decision-making practice. It analyzes the institutional, legal, political and other consequences of the CJEU’s Viking judgment as a means of critiquing the Court’s increasingly profligate yet systematic approach to fundamental rights and freedoms. The resulting description claims that the European legal order is increasingly characterized by omnipresent layers of powerful judges who explicitly “balance” (...) class='Hi'>fundamental rights and freedoms to resolve hotly contested social issues, even when those issues manifest themselves as private law disputes. The Article explains how the imposition of the CJEU’s “fundamentalist” framework impacts powerfully upon, and increasingly threatens, the domestic labor law regimes of Europe. The Article leverages this example to advance several general critiques of the Court’s increasingly dominant “fundamentalist” approach. The Court’s approach fails to treat fundamental rights as fundamental in any meaningful sense. It tramples unnecessarily on important institutional and jurisdictional distinctions, mistakenly redistributing competences not only between Member States and the European Union, but also within the Member States themselves. Finally, the Court’s approach increasingly subsumes all domestic institutions and individuals under a single, undifferentiated and ultimately simplistic normative schema that preempts many of the institutional structures and solutions that might - and in many cases, recently did - skillfully govern significant portions of the European legal field. (shrink)

Whilst the Charter of Fundamental Rights of the European Union, which became part of binding primary EU law on 1 December 2009, constitutes an important codification and clarification of fundamental rights as they exist in the European Union, the field of application of the Charter is limited in a significant way: the Charter only applies when EU law is at stake. When national courts and authorities in the EU Member States are confronted with problems of purely (...) national law, they are not obliged to apply the Charter but should instead rely on the national constitutional Bill of Rights as well as the international human rights instruments which are binding on the Member State in question. The borderline between EU law and national law is not always easy to establish in a concrete case. This article discusses theoretical and practical problems arising out of the application and interpretation of Article 51(1) of the Charter, according to which the Charter is addressed to the Member States ‘only when they are implementing Union law’. It is suggested to adopt a pragmatic case-by-case approach, asking oneself if there is another norm of Union law than a Charter provision which is directly relevant to a case in concreto. If the answer is yes, also the Charter should be applied, supposing that there is a Charter provision which could influence the outcome of the case. If the answer is in the negative, national courts and authorities are only obliged to apply national law, including the constitutional Bill of Rights and the international human rights obligations of the Member State concerned. (shrink)

This article deals with the question whether corporations should have obligations to take positive steps to contribute towards the realisation of fundamental rights. The article commences with a central objection against corporations having such obligations and an analysis of some of the assumptions underlying this objection. The second part of this article challenges some of these assumptions: first, I argue that the legal nature of the corporation implies that it is an entity that is both separate from and (...) dependent upon the individuals underlying it. That understanding informs the idea that there are two central perspectives from which the purpose of the corporation can be understood: a societal perspective and the individual perspective of those investing in or managing a corporation. Understanding the different purposes underlying the corporate structure then provides the basis for two arguments for recognising that corporations should have positive obligations for the realisation of rights: an argument from the limits of private property and an argument from social benefit. This article develops an understanding of the corporation as an agent that is an integral part of society that is required to contribute towards the realisation of fundamental rights. It, however, does so in a distinctive manner: it remains an entity with a commercial focus that must seek to give expression to the interests of individuals underlying it. This article thus argues for a nuanced understanding of the role of the corporation that balances both individual and societal goals. (shrink)

This paper examines how civil society actors in the EU utilize the political and legal opportunities provided by the EU’s fundamental rights policy to mobilize against discrimination, notably racism, and xenophobia. It emphasizes the multiple enabling roles that this policy provides to civil society associations engaged in judicial activism, political advocacy, and service delivery both at the EU and Member State levels, and assesses their effectiveness. It describes several factors that hinder the implementation of EU fundamental (...) class='Hi'>rights policy and reviews the strategies of civil society to overcome them. It highlights the reluctance of parts of public opinion to combat ethnic prejudice, considers reactions against what at a time of crisis is perceived as a costly project of social regulation, and examines civil society responses. The data sources consist of interviews with bureaucratic and civil society actors at EU level. (shrink)

Purpose – This paper aims to examine the primary fundamental rights concerns related to biometrics and their use in automated border controls, as well as how these issues converge in the European Commission’s Smart Borders proposal. Design/methodology/approach – This paper draws on extensive background research and qualitative in-depth interviews conducted in 2013 for the European Union FP-7 project “FastPass – A harmonized, modular reference system for all European automatic border crossing points”. Findings – The Smart Borders proposal not (...) only compounds the individual concerns related to the use of biometrics in border controls and automatisation thereof, but also has serious issues of its own, premier among which is the imposition of a two-tier border control system. Social implications – The paper is a catalyst for open debate on the fundamental questions of how we got to this point and where do we want to go. It questions the process by which the increased use of IT in border controls has become the norm and policy trend in Europe, and discusses where the limits could be drawn from a fundamental rights perspective. In particular, it warns against the institutionalisation of a two-tier border control system among third-country nationals. Originality/value – Little attention is given to the fundamental rights concerns raised for EU and non-EU citizens as related to biometrics and their use in ABCs, and how these issues are reproduced in the Smart Borders proposal. The paper fills this gap by taking a bottom-up approach: examining the implications of individual elements of the proposal to see their impact on the broader policy. (shrink)