Consumers’ rights under international law

Consumers’ rights under international law

Is the protection of vulnerable consumers a new frontier of human rights?

INTRODUCTION

Consumer rights protection has become more and more relevant since the end of the Second World War. Nowadays, many national systems provide specific norms in the field of the protection of consumers, especially when considering the particular case of such individuals who may find themselves in unfair conditions. Due to the particular characteristics of this topic, an attempt to categorise the concept of ‘consumer’ is in order, with due regard to its particular extension towards ‘vulnerable’ ones. It is however relevant to underline from the very beginning that it is very difficult to find a common or shared point of view on the theme. Many legal systems reshape the same concepts and make the job of analysing the whole phenomenon quite complex. How does the European (non)consensus affects the problem? May consumer protection be considered a human right?

Contemporary globalisation process contributes to shape different concepts of ‘vulnerable consumer’, introducing new dimensions to previous interpretations. Some new branches of Consumers Law are progressively trying to cover the relationship between consumers’ activity and the human rights protection. Several international agreements will be analysed in order to prove evidence of the almost complete lack of reference to the idea of ‘vulnerable consumer’.

ARE CONSUMER RIGHTS A FORM OF HUMAN RIGHTS?

By the end of the Second World War, the importance of the protection of Human Rights increased enormously becoming one the cornerstone of contemporary jurisprudence. Nowadays, this branch of law covers not only ‘traditional’ rights such as the Right to Life, the Right to Property, etc. but started encompassing new dimensions and new horizons of people’s life. The last wave of rights, the so-called ‘third generation’, stimulated the awareness on concepts such as collective rights, self-determination, economic and social development, healthy environment, cultural heritage, communication rights, etc. These concepts constituted important rights which are not directly recognized as international human rights, stricto sensu, but that were labelled this way by various international organisations [1].

Some criticisms arose when the concept of human rights was extended to groups: in this case it was stated that ‘human rights’ category applies only to individuals while groups are protective by the so-called ‘collective rights’. Whereas consumers act singularly and not as a category, this criticism does not apply. Furthermore, in the case of ‘vulnerable consumers’ it becomes even more evident the individuality of the problem and the fact that the protection must be directed on a specific target.

Considering modern society, where the right to consume seems to be an ‘essential part of the right to the adequate standard of living’ [2], it can be doubtlessly stated that consumers’ right went far beyond its original structure. Despite what happened in the past, consumer rights are no longer limited within the frame of the domestic social policy but they have achieved a complete legal recognition almost under the majority of national legislative systems. However, is this sufficient to consider the right to consume as a perfect human right? Furthermore, to what extent shall this right be extended to vulnerable consumers?

In order to be considered a Human Right, a specific requirement is the presence of a shared international opinion on the matter, proving the existence of a general consensus on the subject. According to some prominent scholar, consumer rights still belong to the economic sphere and are, therefore, based under the ‘economic rights’ of the Universal Declaration of Human Rights (1948).
The justification of this assumption is to be found in art.25(1), which reads:

[People have the] right to a standard of living adequate for the health and well-being of himself and of his family

It is probably true that the original meaning of the Declaration did not included the idea of ‘consuming’, nevertheless it is almost universally recognised that the interpretation of a treaty should take into account the evolution of societies over time, therefore, contemporary society does require the consideration of consumer rights as a new important dimension.

Another important document, which should be taken into account, is the International Covenant of Economic, Social and Cultural Rights (1996). It was adopted by the United Nations General Assembly but it had to face several criticisms coming from various States such as the US: according to their position, human rights only include civil liberties and political rights, excluding economic rights. Against this conception, it would be interesting to recall words used in a 1994 Report of the Osgoode Hall of Law Journal of the York University, which stated as follows:

‘Though it is obvious that the right to life is superior to the right to paid vacations, this is not an excuse to reduce human rights to their very basic rights only […] The freedom from hunger is of great import in underdeveloped societies, where it is of more importance than certain civil liberties. A similar hierarchy also applies to consumer rights’[3]

The provisions contained in the Covenant of Economic Rights were intended to be implemented in the future, considering the passing of the time and the evolution of civil societies.
According to art.11 of the Covenant, persons have the right to ‘adequate food, clothing and housing, and to the continuous improvement of living conditions’. Under this provision, consumer protection could emerge as an implementation of these rights; adequacy of food includes both food quality and the possibility to access easily this food throughout consumer legislation. At the same time, adequacy of housing could be divided into the ability of housing and its good quality and safety but whether the first part is left to public policy decisions, the second part is obtained from consumer protection.
The same document contains no reference to ‘consumer rights’ due to the fact that they are not directly mentioned, nonetheless they emerge as enshrined into provisions relating, for instance, to the right to health (art.12) and the right to education (art.13).

The third international agreement to be addressed is the 1985 United Nations Guidelines for Consumer Protection (UNGCP), a non-binding document approved by the United Nations General Assembly and the International Organisation of Consumer Unions (IOCU). The UNGCP contains seven goals aiming to the protection of consumers, considering that:

Consumers should have the right of access to non-hazardous products, as well as the importance of promoting just equitable and sustainable economic and social development

However, again in this context ‘governments are called upon to develop their consumer protection policies in line with these principles’ [4], leaving the protection of vulnerable consumers to the domestic level.

Considering what has been highlighted up to this point, it becomes evident that, despite a number of provisions somehow relating to the right to consume (and to consumer’s rights in general) it is very difficult to detect any form of reference to vulnerable consumers. Of course, when considering the relevance of international agreements it is always necessary to bear in mind the general States’ lack of will to restrict their authority. In this context, it emerges clearly that the enhancement of a specific protection for vulnerable consumers constitutes an exclusive competence of the domestic jurisdiction. International documents (being they covenants, agreements, treaties, charters, and so on) only provide general principles to States, without promoting any specific condition for disadvantaged consumers, nor defining the concept itself.

In conclusion, even if we can consider the right to consume as a new frontier of human rights it is rather difficult to find a specific reference to the rights of vulnerable consumers. Perhaps, this could be an interesting starting point for further developments especially when considering the globalised world and its forthcoming challenges.

CONCLUSION

The current general normative approach results to be inadequate on the point, however there are several examples within the European Union law of areas in which the classic consumer protection, left space to new form of increased safeguard [5]. It results almost impossible to detect a common European definition of ‘vulnerability’ because it might change as it changes the definition of ‘consumer’. In general, the European legislator tends to leave the competence of the matter to the domestic jurisdiction of member-States. The extent of the protection is all but clear to be defined in precise terms, due to the fact that it changes continuously, depending on the national relevance which is attributed to consumers.

On the international point, as well, we may find how the concept could be analysed in terms of ‘Human Rights new frontiers’. The modern interpretation of a variety of international agreements could provide a new lens under which to study the evolution of consumer rights, nevertheless we are far from a common vision of the problem.

It seems to be more and more important the formation of new perspective of analysis on vulnerable consumers, taking into account the important role, which has been carried out by many European Union organs. At the same time, it is equally relevant to bear in mind that, without a common opinion and a shared definition both of ‘vulnerability’ and ‘consumer protection’ it would result difficult to assess an adequate legislation on the matter.

Note:

[1] ALSTON, P., ‘Conjuring up New Human Rights: A Proposal for Quality Control’ (1984), cited in DEUTCH, S., ‘Are Consumer Rights Human Rights?’, Osgoode Hall Law Journal 32.3 (1994): 537-578 http://digitalcommons.osgoode.yorku.ca/ohlj/vol32/iss3/4

[2] Ibidem, p. 556

[3] VINCENT, R., J., ‘Human Rights and International Relations’ cited in DEUTCH, S., ‘Are Consumer Rights Human Rights?’, Osgoode Hall Law Journal 32.3 (1994): 537-578

[4] UNGCP Interpretation as cited in DEUTCH, S., ‘Are Consumer Rights Human Rights?’ op. cit. p. 566

[5] WADDINGTON, L., ‘Reflections…’ op. cit. p. 35