Where are human rights heading?

Rudolphina: Anne Kühler, you are a legal philosopher focusing on human rights. Human rights are frequently criticised, with more and more of this criticism coming from democracies. What is behind this?

Anne Kühler: Yes, this criticism of human rights is something we see again and again. Nearly a year ago, in May 2025, nine EU member states, including Austria, published an open letter to the European Court of Human Rights. In this letter, they criticised the ECHR for interfering too much in domestic democratic processes and declared that human rights, which are protected beyond national borders by the European Court of Human Rights in Strasbourg, undermine democratic procedures. 

Taking a closer look at this letter, which was drawn up following an initiative by Denmark and Italy, it becomes apparent that it actually focuses on the subject of migration, in particular on the concern that it is not possible to expel foreigners who have committed a crime. And this is something completely new – a political pitting between democracy and human rights.

Rudolphina: Human rights have been subject to criticism for as long as they have existed ...

Anne Kühler: Of course. There was criticism of human rights already when the first human rights documents were published back in the 18th century. At that time, the feminist Olympe de Gouges criticised the Declaration des Droits de l'Homme of 1789 in France, because it excluded women. And this criticism has expanded into other areas. Marxist critics later described human rights as a bourgeois institution because of their mission to protect “isolated, selfish private individuals”. Postcolonial thinkers have criticised the “western narrative” of human rights. Today, criticism is often voiced by the political right as well. These are interesting developments. Indeed, the one thing that has remained constant over time is that there has always been criticism of human rights.

Rudolphina: Once all domestic means of appeal have been exhausted, European citizens have the opportunity to lodge a complaint directly with the European Court of Human Rights (ECHR), which was founded in 1959. In what way does the ECHR play a key role in protecting and enforcing human rights?

Anne Kühler: Despite all the criticism levelled at it, the European Court of Human Rights has undoubtedly achieved a lot. Without the European Convention on Human Rights and the establishment of the ECHR based on it, Austria would be a different country today. For example, the Austrian Constitutional Court recently granted a transgender person the right to have their gender entry removed from the civil status register. In this case, the Constitutional Court referred to Article 8 of the European Convention on Human Rights, a legal provision which guarantees the right to respect for private life and played a major role in this judgement. 

However, in general, it is important to note that the ECHR is often cautious in its judgements. Its task is to maintain a balance between, on the one hand, the protection of fundamental rights across national borders, which it is responsible for monitoring, and, on the other hand, democratic, self-determined political processes. And these are forces which can collide. The European Court of Human Rights allows EU member states to decide for themselves on a wide range of issues, including abortion, assisted dying and freedom of religion – this freedom to decide is known as ‘margin of discretion’. The ECHR grants the member states this margin of discretion also with regard to the issue of recognising individual gender identity. The Austrian Constitutional Court has taken up this legal doctrine, but is pursuing its own Austrian path in terms of content. Not least in the field of migration, EU member states also have this wriggle room. Therefore, I struggle to understand the criticism directed at the ECHR, especially in view of the balance it tries to strike.

Rudolphina: Can a democracy even function without human rights?

Anne Kühler: Current criticism of the ECHR often seeks to pit democracy against human rights. However, already in 1993, when the World Conference on Human Rights took place in Vienna, the international community agreed that democracy and human rights are interdependent.  A democracy depends on free will and free will can only exist if fundamental human rights are upheld, such as freedom of thought, freedom of opinion and expression, freedom of assembly, freedom of the media, etc.

Rudolphina: One fundamental right is the right to gender equality. Especially at a global level, a lot still remains to be done in this regard. What role do human rights play in making gender equality a reality?

Anne Kühler: This is a fascinating topic, also from a historical perspective. Human rights, such as those set out in the 1789 Declaration of the Rights of Man and of the Citizen, initially omitted several groups of people, including women. The first step therefore was to expand human rights to also include women. This happened very late in some countries, such as in Switzerland, where women did not gain the right to vote until 1971. Austria granted women the right to vote much earlier than that, already in 1918. So the first struggle was simply to make sure that women have the same rights as men. 

Specific women’s rights are a fascinating topic all of their own. The issue of women’s rights as well as the question whether women should have special rights because they have been structurally disadvantaged and discriminated against have been the subject of debate. For centuries. The latter question was finally answered with a ‘yes’ and enshrined in the 1979 Convention on the Elimination of All Forms of Discrimination against Women. However, as was established at the UN World Conference on Human Rights in Vienna in 1993, women's rights are also an inalienable, essential and inseparable part of universal human rights.

Rudolphina: Do we need separate women’s rights?

Anne Kühler: Yes! It is clear, of course, that the extension of fundamental rights to women was of fundamental importance, since it enabled women to act independently with regard to legal matters and, for example, acquire rights, gain access to all levels of education, participate in public political life, etc. However, despite the fact that today women are equal before the law, they continue to experience disadvantages in many areas of life. 

Women’s rights, however, still remains a controversial issue, because specific women’s rights in turn exclude other groups of people. For example, individuals who are not women but are marginalised as well, such as people who do not identify with the categories of the binary gender system. As a society, we are now slowly learning which aspects we need to focus on. The discussion is ongoing, simply because human rights must be as inclusive as possible. Are women’s rights the problem or the solution? One point of criticism raised by the queer community is that separate women’s rights mean a return to the old categories of heteronormativity and that we should respect every person’s individual gender identity.

Rudolphina: Both in Austria and internationally, the number of femicides is on the rise, so it could be argued that women do indeed seem to need special protection from male violence. How could other marginalised groups be included?

Anne Kühler: The committee that is overseeing the UN Convention on the Elimination of All Forms of Discrimination Against Women has pulled a ‘trick’ of sorts by using definitions that are so wide that they also include transgender and intersex persons. It has thus found a very elegant solution to this issue and maintains the focus on protecting people from gender-based discrimination. I think this is absolutely a positive development. Today, the convention on women’s rights has a very strong focus on protection against gender-based violence.

Rudolphina: In your view, what are major challenges in terms of women’s rights today?

Anne Kühler: There are many challenges. In many places around the globe, women still do not have access to basic goods and are subject to violence simply because they are women. Autocracies are gaining ground worldwide, which is anything but good news for the rights of women. Autocratic states deliberately or indirectly undermine women’s rights by, for example, promoting traditional notions of family with strict gender roles under the banner of ‘promoting families’, thereby undermining gender equality. This has consequences for democratic societies and is dramatic given the large proportion of the world’s population living in autocratic countries. However, even in liberal societies, gender stereotypes and traditional notions on the role of women persist.

Rudolphina: We have seen that the history of human rights is not and never has been linear. Today, we aim to define human rights in such a way that they are inclusive and adapted to current circumstances. For example, the ECHR has recently established that climate protection is a human right. In your view, where are human rights heading?

Anne Kühler: That is a tricky question. It would be naive to consider the development of human rights as a linear one. At the same time, I still believe that we also have reason to be optimistic. The history of human rights has been characterised by many struggles, ruptures and setbacks, but ultimately it is about inclusion and participation. For example, feminist criticism of human rights has allowed us to identify the diverse and complex mechanisms of exclusion and focus on the aspect of protection against discrimination. In comparison to other countries, the situation in Austria is very good; you could say that we are in a sort of comfort zone in this regard, as shown by the most recent decision of the Austrian Constitutional Court with regard to gender identity. 

Overall, this development makes our world a more diverse and colourful place. Many more stakeholders can contribute, many more interests are involved and as a result, there is more discussion about it. And that is a good thing. Human rights are now globally recognised as criteria for the legitimacy of legal systems. They are key elements of justice. The fact that social movements such as the climate movement refer to human rights is not troubling in my opinion. And it is nothing new that courts must adapt their interpretation of human rights to constantly changing circumstances. 

But the notion of human rights is also under pressure worldwide. Human rights are a very fragile achievement that we cannot take for granted. For them to endure, we must have the conviction to stand up for them and keep on scrutinising legal systems to assess their legitimacy.

Rudolphina: Thank you very much for the interview.