This paper focuses on the rhetoric dimension of framing an issue as a ‘new’ human right. As a contribution to a communications theory of rights it looks into the role rhetoric plays in the triangulation of concepts, language and society, taking as a theoretical framework the topical reconstruction of legal discourse after Viehweg and Bornscheuer, especially. Building on a larger project of research into the phenomenon of ‘new’ human rights the paper identifies five intersecting functions of arguing a ‘human right to…’: an appellative function that makes special use of the rhetorical element of pathos; a contesting function closely connected with challenging existing norms by reference to constitutional vocabulary; a connecting function by using human rights as a ‘common language of humanity’; a triggering function related to institutions and procedures; a jurisgenerative function by creating a discursive hub that can evolve into a topos of its own.
The emergence of new genetic knowledge and the spread of genetic interventions require new laws or even the development of a new theory of human rights. But how can we understand human rights on the molecular and the genetic level? Can we stretch our existing notions of human rights to our genes, our biological and genetic beings or do we need a new catalogue of human rights? How should we interpret human dignity, privacy, and the principle of non-discrimination when human beings, as complex bio-social identities, are to be protected by human rights instruments, rather than persons? Can this new form of bio-constitutionalism revitalize human rights in order to protect individuals and their biological makeup from further commodification? Can genetics be regarded as a catalyst for development of contemporary human rights? And how can we avoid the return of eugenic and reductionist trends by human rights?
Governments around the world issue identity documents (IDs) that list people’s gender. These IDs include birth certificates, passports, national identification cards, and driver’s licenses, among others. People are expected to present IDs in everyday life for a wide range of purposes, such as opening a bank account, renting a car, boarding an airplane, and voting. Longstanding human rights principles support the proposition that, if IDs contain gender markers, individuals have the right to obtain markers that match their gender identity—which I will refer to as the right to gender recognition. Some commentators argue that this right is radically new and ought to be rejected. To address this concern, my paper contends that the right to gender recognition is only new in a very limited regard: the right to gender recognition is a newly recognized aspect of preexisting rights.
This presentation will put forward two theses regarding the development of new human rights. ‘The inadequacy of protection thesis’ says that the main reason for the advancement of a new human rights claim is the incapability of established human rights to provide adequate protection for certain marginalized groups, or that novel conditions challenge the capability of an established human right to provide sufficient protection for an important social value. There are six origins for new human rights claims: realization of some political agenda, pressure from civil society groups, scientific and technological developments, realization that the existing legal framework does not allow the protection of an important social value, conceptualization of social values, and intellectual reasons. This process of new human rights emergence leads ‘the decrease in universality and abstractness thesis’, leading to the rejection of the proposition that the universe of human rights can grow endlessly.