Professor Bielefeldt, how important is the concept of human rights for the Federal Republic’s national identity?
Article 1 of Germany’s Basic Law begins with the following sentence: “Human dignity shall be inviolable.” This article represents a fundamental new beginning – not only compared to the National Socialist dictatorship but also compared to the earlier Weimar Constitution. It is intended to make it clear in the very first article that politics is obliged to maintain standards of human rights that can also be asserted in the courts. Human rights represent the guiding principle of the Basic Law; they very fundamentally form the identity of the order laid down in the Basic Law.
Human rights also develop. Nevertheless, there are elements of continuity. Above all, there is human dignity as the overarching principle. In addition, it is possible to name other principles that intrinsically bring together human rights, such as freedom, equality and solidarity. Changes are emerging not only in terms of content, but also in relation to institutions. New subjects have been added – for example, data protection, which did not yet play any role more than 60 years ago. The more recent human rights also include the rights of the disabled as a part of the protection against discrimination or the right to recognition of sexual orientation and gender identity. The latter have not yet fully asserted themselves worldwide, but they have long since found a place at the United Nations. Human rights can be described as a learning process and simultaneously as a process of forming institutions. In recent years, for example, there has been an increased focus on prevention.
What have the experiences been with this kind of prevention?
The preventative approach has proven to be a real model for success because it does not only involve responding to complaints. Instead unannounced monitoring takes place in areas of risk: for example, independent commissions visit prisons, psychiatric institutions and, more recently, nursing homes. That is a structural approach that brings important discoveries to light and can also have great practical impact.
The universal validity of human rights is constantly called into question. They are seen by some as a “product of the West”. How do you counter that accusation?
Surprisingly, I encounter that less frequently than I expected. It is more pronounced in academic debate than in international diplomacy. Human rights are not a product of the West, but the result of a complicated, often controversial learning history in which different countries and regions definitely come into their own also in terms of their differences. Of course, this learning history did not take place simultaneously in all regions of the world, but it does not create a monopoly of the West. Human rights are not least an answer to critically intensifying pluralization processes like those that can be observed worldwide.
It has certainly gained that already – in any event, abstract approval exists worldwide. But we mustn’t be naive – in part, this has more to do with lip service. Human rights rhetoric is sometimes rather ambiguous. It is now important to deal with this ambiguity appropriately, to engage governments in human rights rhetoric, then measure them against their own declarations and translate these declarations into binding norms. That is why the development of monitoring institutions, bodies where talks on this are regularly held, is important. We are in the midst of this process.
Which is the strongest instrument for asserting human rights?
I don’t know whether a ranking of that kind is meaningful. When governments don’t cooperate at all, we experience the limits of effectiveness in a sometimes very brutal manner. Then occasionally nothing really moves. That is a reality that you then first have to look very clearly in the eye. Fundamentally, it depends on the entire range of instruments that are being put into effect. It is a matter of the interaction of many different institutions on many different levels. Without civil society involvement the whole thing peters out, without enforcement in the courts the protection of human rights remains hollow and without media coverage it cannot function either. We need a synopsis of all these institutions, of the more formal and of the less formalized.
There have recently been debates in which religious freedom and freedom of expression were played off against one another. How do you see the relationship between these two rights?
Essentially, it is a synergic relationship, although, of course, it is one that is not without a risk of occasional friction. Nevertheless, it would be wrong and rather dangerous to assume a fundamental antagonism here. Freedom of religion is often misunderstood. Its name signals that it is a question of religious values and religious practices. What should be protected, however, is not religious truth and religious tradition, but people’s freedoms. As with all other human rights, the subject of religious freedom is the human being – the human being as a rather complex entity that has convictions, religious and ideological convictions, and that values associated practices. It cannot be the duty of government to protect concrete religious practices as such or even protect the honour of religion, but what must be guaranteed here is human dignity, freedom and equality. It is always only through human beings that religions can be viewed in all their beliefs, rituals and practices.
Which achievement of human rights policy do you admire most?
I am impressed most by people who refuse to become disheartened, who work for others under dangerous conditions and put themselves at risk. It is one of the amazing aspects of my job that I constantly encounter people like that. It provides hope that progress will be made on human rights. ▪
Interview: Janet Schayan
PROF. DR. HEINER BIELEFELDT
The United Nations Special Rapporteur on Freedom of Religion or Belief holds the Chair of Human Rights and Human Rights Policy at the University of Erlangen-Nuremberg. The theologian, philosopher and historian was born in 1958 and is an expert, among other things, on the theory and practice of human rights as well as the history of political ideas and intercultural philosophy.