The Role of Principles for HRIAs

thority used to conduct HRIAs in the past (even if only based on a not externally binding self-commitment) but fails to do so now, this might be regarded as a step backward and thus a viola-tion of the principle of non-retrogression. However, to what extent this is actually the case is difficult to determine, and it is not clear to what extent such a binding effect would always be desirable. First, it must be demonstrated that human rights impact assessments actually do con-tribute to the realization of human rights. Otherwise, the refusal to conduct them in the future would not be a move backward. Second, the principle of non-retrogression may produce coun-ter-productive effects as it punishes agencies that implement a high level of human rights pro-tection and can deter agencies from experimenting with different human rights instruments. As Mary Dowell-Jones put it, the principle of non-retrogression can be an “extremely crude and unsatisfactory yardstick for measuring compliance with progressive achievement of the Cove-nant”.⁴⁰² Therefore, a binding effect based on the principle of non-retrogression must be limited to cases where the failure to conduct impact assessments is evidently a retrogressive step. This requires actual proof that impact assessments contribute to the realization of economic, social and cultural rights.

prin-non-binding principles, which may be based on declarations (e.g. UN General Assembly Resolu-tions, or political declarations such as the Paris Declaration), but which can nevertheless align state behavior.⁴⁰⁶ Second, principles – in this sense sometimes called “structural principles” – also have a heuristic function, which means that they structure and systematize legal material to make it manageable.⁴⁰⁷

Methodologically, principles can be reconstructed inductively or deductively. Inductively, prin-ciples are developed from existing (administrative) rules,⁴⁰⁸ including those found in the “prac-tice of global governance”.⁴⁰⁹ This means for the present thesis to look into different types of norms determining how to conduct impact assessments and identify principles common to these provisions. One example is the principle of proportionate analysis which determines the depth of analysis required for impact assessments.⁴¹⁰ Deductively, specific principles applicable to hu-man rights impact assessments would be developed from general principles (e.g. general huhu-man rights principles and standards) and then specified and applied to impact assessments. In con-sequence, the obligation to conduct HRIAs in a transparent, participatory and non-discriminatory manner is also based on deductively reconstructed principles of human rights law.

Legal, structural and guiding principles are relevant for HRIAs. As mentioned before, this affects both the HRIA procedure and the object of the assessment. The process generally requires, to a certain degree, compliance with principles of transparency and participation on a non-discriminatory basis. At a more specific level, the distinction between legal and structural prin-ciples becomes more important. For example, the EU increasingly relies on advisory bodies and expert committees to assess the impacts of its policies. The legal principle of non-discrimination means that the EU may not discriminate, when appointing committee members, based on crite-ria such as gender or race. Arguably, this is not the major problem with the advisory committee appointment. Rather, a problematic dispute concerns the discrimination between for-profit and not-for-profit representatives: The composition of expert committees is regularly criticized for its alleged bias in favor of business interests. This is not compatible with the principle of bal-anced representation, a non-binding principle identified in internal EU law.⁴¹¹ It is arguably not a violation of the human rights principle of non-discrimination because the distinction between for-profit and not-for-profit representation is not a suspect class. However, even as a structur-al/guiding principle, the principle of balanced representation serves several important func-tions: First, it guides the competent institutions when appointing committee members (even ciples theory" held at the 23rd World Congress of the International Association for Philosophy of Law and Social Philosophy (IVR), Kraków, 2007, pp. 145–159, pp. 156–159.

406 An example is the principle of ownership in international development law: it is recognized in political declarations, to a certain extent applied by donor organizations, but (at least so far) the violation of the principle of ownership would not result in the invalidation of a funding decision: Dann, The Law of Devel-opment Cooperation (above, n. 4), 222 ff.

407 Bogdandy, ‘General Principles of International Public Authority: Sketching a Research Field’ (above, n.

403), 1910 f.; Jakab, ‘Re-Defining Principles as 'Important Rules': A Critique of Robert Alexy’ (above, n.

405), p. 155; Dann, The Law of Development Cooperation (above, n. 4), 222 ff.

408 Michael Riegner, ‘Legal frameworks and general principles for indicators in sovereign debt restructur-ing: Paper prepared for the Third Session of the UNCTAD Working Group on a Debt Workout Mechanism’, 1 May 2014, p. 18.

409 Kingsbury, ‘The Concept of ‘Law’ in Global Administrative Law’ (above, n. 69), p. 24.

410 See section 8.3.2.

411 See section 5.5.3.2.2.

though, as critics say, not sufficiently) and requires at least political justification for appoint-ments. Second, it is a principle of good administration and thus subject to review by the Europe-an OmbudsmEurope-an. Finally, it might become a binding principle once recognized as customary law or under the principle of legitimate expectations.

While the previous paragraph focused on the HRIA procedure, the next question regards the role principles play regarding the object of the assessment, namely the assessment of human rights impacts. One goal of impact assessments is to increase the positive and reduce the negative con-sequences a decision has on human rights. This often requires a balancing between competing interests, many of which can be expressed in human rights terms. Where clear normative guid-ance is missing, human rights apply as general principles. If and insofar as competing human rights impacts are identified, it becomes necessary to balance these rights against each other in line with the principle of proportionality. Generally, public authorities enjoy a discretion or mar-gin of appreciation in this context, and the same is true for those conducting impact assessments.

The objective is to optimize the realization of all human rights by either increasing the positive or reducing the negative impacts.⁴¹² Optimization requires a balancing of competing rights and legal interests. Consequently, it is more than a non-binding political promise to take human rights impacts into account: it implies that certain policy options might be held to be illegal. Of course, in many cases, there is no clear-cut answer as to where the right balance is. Nevertheless, where no such balancing takes place, where the balancing is based on clearly wrong factual as-sumptions, or where the result is evidently disproportionate, an impact assessment would argu-ably be legally defective. Whether or not this affects the final decision to be informed by the IA is a question to be addressed in the final two chapters.

The term “optimization” in the context of human rights is often associated with Alexy’s theory of constitutional rights.⁴¹³ Such an optimization approach was subject to fundamental criticism.⁴¹⁴ According to Habermas, the concept of optimization is problematic because of the “premise that

412 On optimization in cases of regulation for and of innovation: Hoffmann-Riem and Fritzsche, ‘Innova-tionsverantwortung - zur Einleitung’ (above, n. 195), 17 f.

413 Alexy and Rivers, A Theory of Constitutional Rights (above, n. 344), p. 47. Critical of Alexy, emphasizing the “collateral damage” caused by the doctrine of balancing: Matthias Jestaedt, ‘The Doctrine of Balancing - its Strengths and Weaknesses’, in: Matthias Klatt (ed.), Institutionalized reason, pp. 152–172, 159 ff.; see also Matthias Klatt and Moritz Meister, The constitutional structure of proportionality (Oxford: Oxford Univ. Press, 2012), 1. ed, p. 137.

414 Cricisim was expressed from different political angles. Carl Schmitt and Ernst Forsthoff stated that an understanding of fundamental rights and human rights as an objective system of values implies the risk that individual freedom is replaced by the “tyranny” of values: Ernst Forsthoff, ‘Zur heutigen Situation der Verfassungslehre’, in: Barion, Hans, et al. (ed.), Epirrhosis, pp. 185–211, p. 190; Carl Schmitt, Die Tyrannei der Werte (Berlin: Duncker & Humblot, 2011), 3. Aufl. A related concern is that the objectivization of hu-man rights as principles and the necessary balancing requirement lead to an overload of constitutional determination and a shift of political processes from the legislature to constitutional courts: Ernst-Wolfgang Böckenförde, Staat, Verfassung, Demokratie (Frankfurt am Main: suhrkamp, 1992), 2. Aufl., 187 ff. Irrespective of whether Schmitt’s and Forsthoff’s concerns are justified in domestic constitutional law, there is hardly a risk of a “tyranny of values” imposed by an objectivized order of human rights as princi-ples in the international sphere: Constitutional determination at the global level is (at least now and in the near future) no risk to individual freedoms. Similarly, Böckenförde’s observation about the political shift from legislatures to courts might be a valid critique for well-established national constitutional democra-cies. Given the absence of a global legislature, it is not a major concern for international decision-making.

Moreover, with regard to EU external relations, EU case law does not apply human rights and other consti-tutional principles to an extent that comes even close to the type of consticonsti-tutional determinism criticized above.

assimilates legal principles to values”, whereby norms have a deontological sense while values are teleological.⁴¹⁵ Such an understanding would, already on a conceptual level, downgrade hu-man rights as principles to the level of policies: “For if in cases of collision all reasons can assume the character of policy arguments, then the fire wall erected in legal discourse by a deontological understanding of legal norms and principles collapses. […] Every value is inherently just as par-ticular as every other, whereas norms owe their validity to a universalization test.”⁴¹⁶ In the end, if human rights are understood as values and if optimization shall resolve collisions, almost eve-rything becomes a matter of balancing, and principles may lose their normative character.⁴¹⁷ Principles based on deontological assumptions must therefore be protected from such a cost-benefit analysis.⁴¹⁸

This criticism should be taken seriously. As will be seen, there is a certain trend in impact as-sessments to compare and thus “balance” negative effects on certain human rights with the ex-pected positive effects in other areas, such as economic growth. However, it is necessary to con-sider the different functions human rights can play, as has been illustrated above,⁴¹⁹ namely as (individual) entitlements or rights on the one hand, and as non-individualised policy objectives on the other hand. As entitlements, human rights establish legal boundaries that restrict the ex-ercise of public authority. Criticism against optimization raises most concerns here. However, insofar as human rights function as legally binding but non-individualised policy objectives guid-ing rule and policy-makguid-ing, optimization is less problematic. It is rather justified insofar as hu-man rights as policy objectives supplement the protection granted by huhu-man rights entitlements (enforced through adjudication). This includes situations where acts of a public authority are likely to have some impact on human interests and the enjoyment of human rights, even though such an impact would not constitute a human rights infringement in the technical sense. So the EU must, even absent specific human rights entitlements, orient its internal and external policies towards human rights (see Articles 3 (5) and 21 TEU). Like in domestic regulatory law and poli-cy-making,⁴²⁰ some form of optimization is unavoidable. It does not downgrade human rights to pure values if optimization takes place ex-ante during law and policy-making; this would, in particular, not exclude the option of affected individuals to claim, ex-post, a violation of their human rights as rights in human rights litigation. In other words: human rights can function as rights/entitlements and also as optimization principles which guide the exercise of public authorities in all policy areas.⁴²¹ Institutionalized HRIAs do not replace human rights adjudica-tion, but are a mechanism to give (ideally) more effect to the enjoyment of human rights in gen-eral.

415 Habermas, Between Facts and Norms (above, n. 320), p. 255.

416 Ibid., p. 259.

417 Axel Tschentscher, ‘Interpreting Fundamental Rights: Freedom versus Optimization’, 4 May 2012, p. 7.

418 Habermas, Between Facts and Norms (above, n. 320), p. 260.

419 See section 2.4.2.

420 Hilson, ‘Rights and Principles in EU Law: A Distinction Without Foundation?’ (above, n. 195), p. 210; on optimization and constitutional principles in regulatory law: Hoffmann-Riem and Fritzsche, ‘Innova-tionsverantwortung - zur Einleitung’ (above, n. 195), 17 f.

421 For an analysis of human rights as rights and optimization principles in international law: Henninger, Menschenrechte und Frieden als Rechtsprinzipien des Völkerrechts (above, n. 194), 293 et seq.