Positive State Obligations Regarding Fundamental Rights and ‘Changing the Hearts and Minds’

Kristin Henrard, "Positive State Obligations Regarding Fundamental Rights and ‘Changing the Hearts and Minds’", Erasmus Law Review, 3, (2020):1-4

The overarching concern about the effective protection of fundamental rights has triggered the identification of an increasing number and degree of positive state obligations. When having regard to positive state obligations to (aim to) eradicate ingrained prejudice and stereotypical thinking, the ultimate question seems to be whether and if so, to what extent, states are obliged (to try) to change people’s hearts and minds. This undoubtedly controversial question was the subject of an international conference, organized at the Erasmus University Rotterdam in January 2020, by professor Kristin Henrard, with the financial support of the Erasmus Trust Fund, the EUR Initiative of Inclusive Prosperity and ESL’s  Rule of Law research program. In order to address this complex question in an appropriate manner, three avenues were identified, resulting in three strands of presentations. This special issue of Erasmus Law Review captures the presentations and subsequent discussions at the conference. The first strand set out to develop the parameters for such positive state obligations from a multi-disciplinary perspective, more particularly combining the parameters visible in the human rights paradigm, as well as in sociology and ethics. When assessing and evaluating the extent to which states could be obliged to try to change hearts and minds, the preliminary non-legal questions about sociological possibilities (can states at all change the way people think and feel?) and possible ethical constraints need to be taken into account as well. The second strand zooms in on the time-factor involved, in the sense that countering deep-seated prejudice and discrimination is a process that takes considerable time, has a ‘long durée’, and is often not linear. The third strand charts the trends that emerge in the (quasi) jurisprudence of a range of international human rights courts, when zooming in particular  vulnerable groups, often targets of prejudice and discrimination, more particularly Roma, Muslim minorities in the western world, LGBTI and persons with a disability. Each article focuses on one particular vulnerable group, while having regard to various relevant conventions and related supervisory practice, so as to be able to paint an overall picture.