Six New Fundamental Rights for EU?
By: Caroline Neufert
Tags: European Union, Fundamental Rights, Globalization

Ferdinand von Schirach published his new book “Jeder Mensch”. As always — title and content short and sweet. Since I enjoy reading Schirach and find his thoughts and statements interesting, I advertise here to think about “Every human being”. It is about nothing less than the expansion of the EU Charter of Fundamental Rights. He justifies (only in German) this necessity thus:

An update, a modernization is necessary, because many topics such as globalization and artificial intelligence are not covered by the existing fundamental rights.

Fundamental rights would have to be visionary and contain goals, and

Fundamental rights would have to be enforceable by “everyone”; the Charter of Fundamental Rights does not currently offer this possibility.

Probably it is the last point that the lawyer Schirach needed as a trigger; which articles do Schirach and other European Constitutional lawyers and scientists propose:

Article 1 — Environment: Everyone has the right to live in a healthy and protected environment.

Article 2 — Digital self-determination: Everyone has the right to digital self-determination. Excessive profiling or the manipulation of people is forbidden.

Article 3 — Artificial Intelligence: Everyone has the right to know that any algorithms imposed on them are transparent, verifiable and fair. Major decisions must be taken by a human being.

Article 4 — Truth: Everyone has the right to know that statements made by public officials are true.

Article 5 — Globalization: Everyone has the right to be offered only those goods and services that are produced and provided with respect for universal human rights.

Article 6 — Fundamental Rights Lawsuits: Everyone has the right to bring fundamental rights before the European Courts when the Charter’s fundamental rights are systematically violated.

I took the time to reflect on these six articles, and post my thoughts. My evaluation is guided

from the existing Charter of Fundamental Rights, i.e. is an extension really necessary,

is the demand clearly and unambiguously formulated, so that anyone can understand and agree, and

is the right visionary and takes us, the people, further, i.e. does it expand our rights and/or does it define them more clearly than the existing fundamental rights.

Article 1 sounds reasonable at first. Living in a healthy environment is desirable, is not required in this form in the Charter of Fundamental Rights, and is goal-oriented. But what is a “protected environment”? Regardless of the fact that this can be perceived differently for each person, the term protected environment is far too vague: borders, closed doors to the protection of fauna and flora etc.

Article 2 is indeed a fundamental right and an extension is needed. This right includes the protection of personal data and the informed choice to use it, to release it, and I would agree with this.

Article 3 was probably the most difficult one for the authors. It is clear that knowledge is limited here and unknown territory is being entered. This article testifies to the hope of (still) being able to control the so-called algorithms. First remark, who decides what is essential. Inherent in artificial intelligence in particular is that an unessential thing becomes an essential thing. Artificial Intelligence is self-learning, which can’t/shouldn’t be designed with current morals in mind. “Burdensome algorithms” are supposed to be fair is a contradiction in terms. Fulfilling Art 2 would make Art 3 obsolete.

Article 4 — a matter of course. Schirach justifies this claim that humans know what is truth or lie. To this I remark: German officials are bound by the German constitution, EU officials by the EU Staff Regulations. Both do not oblige public officials to tell the truth, but they do oblige them to act objectively. Hannah Arendt, in her report “The Banality of Evil” on the Eichmann trial, recognized Eichmann as a public official who was not aware of any guilt and saw himself only as an executive body, i.e. in addition to objective and subjective truth, there is also that of public officials who do not (want to) know what truth is. Although Art. 4 is a noble goal, it cannot be fulfilled/enforced and is therefore obsolete.

Article 5 is reminiscent of the German Supply Chain Act. For economy and prosperity this demand is currently not useful, because this right conditions the other fundamental rights, can only be realized on the EU and thus negates globalization. The influence of the EU on the implementation of universal human rights is limited. If one thinks further, it means that suppliers of goods and services have an influence on the observance of universal human rights worldwide, which not only collides with the fundamental right to freedom. If, instead of universal human rights, the article aimed at fair remuneration and against child labor, it would be achievable.

Article 6 I could agree with, although the word “systematically” again leaves room for speculation and Art 47 of the EU Charter of Fundamental Rights already allows for legal remedies.

In summary, I only fully agree with Article 2.

The other articles are guided by current social conditions. For example, Schirach cites authoritarian populist presidents such as Orban and Trump as reasons for Art 4 and the “omnipotence” of global internet platforms that need to be prevented/contained for Art 3. Adaptation to new circumstances are necessary but not sufficient conditions for the further development of fundamental rights; fundamental rights are not fads.

Schirach’s “Every Human being” initiative calls for signatures. Unfortunately, however, there is no possibility of discussion or deselection/approval of individual articles, so that I do not sign this appeal in its entirety.