Adam Bodnar: What new rights do we need to better protect ourselves from abuses of power

The well-known German writer and lawyer Ferdinand von Schirach published his manifesto “Every Man” a few months ago. He demands that we consider whether the current catalog of fundamental rights is adequate for the state of development of societies. He argues that the Charter of Fundamental Rights of the European Union, drafted over 20 years ago, has not kept up with the challenges. He calls for a discussion on what new rights we need to better protect ourselves from abuses of power.

Why would von Schirach want to expand the Charter of Fundamental Rights? Sometimes it may seem like just another international agreement, but its legal status is quite different. 

The Charter forms part of the Union’s primary law and has the same force as the European treaties. It directly influences the activities of EU bodies, but it also binds member states when they exercise EU competences (e.g. support for farmers or the use of the European arrest warrant by courts).

All draft legislation at EU level is scrutinised through its prism. The Charter resembles more closely for example the Chapter II of the Polish Constitution (containing a catalog of rights and freedoms) than a typical international agreement on human rights. Therefore, the solutions adopted in it would not be vague postulates, but concrete laws – binding and enforced at the EU level.

Von Schirach proposes six new rights: (I) the right to a clean environment, (II) the right to digital self-determination, (III) the prohibition of excessive use of algorithms, (IV) the right to truth, (V) the prohibition of offering goods produced in violation of human rights, (VI) the right of access to European courts in case of systemic violations of fundamental rights.

Some may seem obvious, like the right to a clean environment. However, the Charter is remarkably modest here. It indicates that the duty to care for the environment was one of the principles of EU policy, but it doesnot present a clean environment as a right that citizens could directly claim. This type of change could be fundamental to strategic anti-climate change proceedings. For example, the German Federal Constitutional Court recently analyzed a climate protection law, where it found that its unambitious goals violate the rights of future generations, but also the principle of solidarity with those who live in countries and regions already experiencing disaster.

Imagine if such rulings were made at the level of the Court of Justice of the European Union (CJEU). Such rulings could provide a far greater impetus for green reform throughout Europe and not only in one country.

Provisions on digital self-determination, the use of algorithms and artificial intelligence also seem obvious. But in the late 1990s, when the Charter of Fundamental Rights was drafted, few could have foreseen such rapid technological development. 

I remember that at that time the inclusion in the Charter of the prohibition of discrimination on the basis of “genetic characteristics” was considered to be an extraordinary progressiveness, and now it is something quite normal. If we do not want to create a surveillance society on the model of China, or if we do not want to be at the mercy of multinational corporations, then we should control the development of technology in terms of ethics and violations of our autonomy. 

A lot is already happening in the EU, for example, legislation on artificial intelligence. But framing these issues in terms of fundamental rights will force a review of all policies and legislation. The famous GDPR also drew inspiration from hard guarantees of protection of the right to privacy and personal data.

The demand regarding disinformation is very interesting. Von Schirach argues that we should have the right to trust that “statements made by people in public office are true”. This “right to the truth” makes one wonder what kind of world we live in. After all, misrepresentation, manipulation of information, juggling of statistics, misleading, cooperation with selected media are our everyday life. It is only thanks to journalists and social organizations that we can break through the cacophony of information and disinformation. And yet we could expect that if someone wields power and performs tasks for citizens, they should simply tell the truth. Individuals can lie and manipulate – it’s part of human life, whether we like it or not.

Imagine such a right gaining constitutional status. We could, for example, sue ministers for personal injury for misleading us, lying to us, manipulating us. It sounds like utopia, but in a post-truth world we should demand more from those who represent us.

For years, community organizations have been pointing out that as part of the global supply chain, we should ensure that the production of a good does not involve human rights violations. The media have reported on sewing factories using slave labor or oil corporations destroying the local environment. However, the execution of this demand came down to the adoption of corporate social responsibility (CSR) standards by businesses. Some corporations adhered to them, others a little less so, and still others decided that all that mattered was profit and possibly repairing a damaged image. 

Creating a law that we can only be offered honestly produced goods would be a revolution in Europe. But who, if not the Union, is to be the promoter of the most advanced moral attitudes.

The last right pointed out by von Schirach is the right to sue in the European courts in case of systematic violation of fundamental rights. In theory, any EU citizen can present a complaint to the European courts. But in the case of the CJEU, this is quite complicated. The postulate echoes nostalgia for the German solution, in which the constitutional complaint not only leads to the resolution of fundamental issues, but also shapes a special relationship between the citizen and the Federal Constitutional Court. It legitimizes and strengthens the jurisprudential power of the courts. The same should happen at the highest level of the EU judiciary, and proximity to EU citizens can be ensured by the actual availability of legal mechanisms and remedies.

The von Schirach initiative has already been taken up in some countries. In Austria promotional activities are coordinated by the Vienna Forum for Democracy and Human Rights. In Poland it has been undertaken by the Center for International Relations. Public pressure and the collection of signatures under the petition can start the process of change.

I strongly believe that we will overcome the current human rights crises. We will get out of the darkness. But we already need to shape a new agenda.

Moreover, perhaps the discussion about the future will prove attractive to a younger generation, tired of daily disputes and looking for answers to questions about identity, security and the future on our planet. “Every Man” allows you to take a breath of fresh air.

In collaboration with Karen Culver

Adam Bodnar is a former Polish ombudsman, Dean of the Law Faculty at the SWPS University in Warsaw, and a CEU graduate.

Contact Us