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Consumer Rights in the Context of Human Rights: A Legal Analysis

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 Volume 02, Issue 01
KDU Law Journal March, 2022
General Sir John Kotelawala Defence University, Sri Lanka ISSN 2783-8870

Consumer Rights in the Context of Human Rights:

A Legal Analysis

Ruwanthika Ariyaratna*

Abstract
Consumers are regarded as one of the most important economic
groups in a country's economy. At the international level, the United
Nations Guidelines on Consumer Protection (UNGCP) recognizes several
consumer rights as legitimate consumer needs, such as the right to
safety, the right to be informed, the right to choose, the right to be
heard, and so on. However, the concept of consumer rights receives
less attention than other right-based approaches such as human rights.
Therefore, there is an ongoing debate about whether consumer rights
could be considered as human rights or not. Since there are no exclusive
lists of human rights, and consumer rights are individual rights rather
than group rights, arguments are emerging to consider consumer rights
as soft human rights at the very least. Therefore, the main objective of
this paper is to analyze the proposition to consider consumer rights in
the context of human rights and to highlight the significance as well as
the benefits of elevating the concept of consumer right into the umbrella
concept of human rights. This study is a doctrinal legal study that employs
a qualitative research paradigm as the primary research method. Data is
gathered using primary and secondary sources of literature.

Keywords: Consumer Rights, Human Rights, Consumerism, Third Generation

Human Rights

* MPhil (Colombo), LL.M (Merit) Colombo, LL.B (Hons) Colombo, Senior Lecturer, Department of Legal Studies,
Faculty of Humanities and Social Sciences, Open University of Sri Lanka, , Attorney At Law.

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 KDU Law Journal
General Sir John Kotelawala Defence University, Sri Lanka

Introduction
The concept of consumer rights is a much broader concept which
encapsulates a wide range of rights and privileges entitled by general
consumers. As Larson and Lawson clearly opine ‘the extent and
coverage’ of consumer rights have been subjected to numerous
changes from time to time1. Therefore, as the authors argue, it is
difficult to determine ‘the purpose and scope’ of consumer rights
precisely2. In general, consumer rights can be defined a body of rights
and privileges entitled by general consumers.

However, presently, the United Nations Guidelines on Consumer Rights

(UNGCP) and some other international legal instruments recognize
certain rights such as the right to safety, right to be informed, right
to choose, right to be heard etc. as the basic consumer rights3. Also,
there is an ongoing debate about whether consumer rights could be
considered as human rights or not. As Devi highlights, some of the
basic human rights concepts such as “the concepts of life, liberty,
equality, and dignity are very well connected with consumer behavior
”4. The main objective of this paper is to analyze the argument of
considering consumer rights in the context of human rights and
to highlight the importance as well as the benefits of elevating the
concept of consumer rights into the broad range of human rights. In
order to obtain an in-depth understanding of the concept, the first
few sections of this paper shall discuss the origin and evolution of
the concept of consumer rights, consumerism and human rights.
Later, this paper shall analyses the supposing and opposing view for
recognizing the concept of consumer rights in the context of human
rights. In conclusion, this paper shall draw attention to the utility of
upgrading the concept of consumer rights as a human right.

This study is a doctrinal legal study that employs a qualitative

research paradigm as the primary research method. Data is gathered
1
G Larsen and R Lawson, “Consumer Rights: An Assessment of Justice” (2012) 112 Journal of Business Ethics
515
2
ibid
3
See Guideline 5 of the UNGCP
4
Devi T, “Legal Regime for the Consumer Protection and Its Human Rights Perspective” (2015) 3 International
Journal of Law and Legal Jurisprudence Studies 316

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Consumer Rights in the Context of Human Rights:
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A Legal Analysis March, 2022
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using primary and secondary sources of literature. This study looks

at international legal instruments pertaining to consumer rights and
human rights, Constitutions of the selected countries and legislations
as primary sources. Secondary sources of the research include journal
articles, research papers, books, and web resources, among other
things.

Evolution of Consumer Rights

In ancient legal history, it is difficult to identify a separate legal category
referred to as ‘consumer law’ or ‘consumer rights’. This is because as
Benohr explains, “buyer was not believed to be in need of special legal
protection”5. It can be assumed that due to the agricultural economy,
only limited occasions of consumer-supplier transactions could have
occurred and in such a context, it was obvious that the legal system
paid minimal attention to develop a separate consumer law. However,
as many legal scholars denote, the buyer's interests were protected
against the fraudulent acts of the merchants even in the ancient times 6.

In ancient Roman Law, there were many contractual obligations and

actions against the seller in order to protect the buyer's interests. Roman
law recognized the contract of buying and selling as ex consensus, which
implied the consensus among buyer and the supplier7. Benohr provides
two examples for the legal mandates against the seller which intended
to protect buyers interests in Roman Law. Those are i) “action against
the seller in order to protect buyers from any hidden defects of goods
purchased” and ii) “principles of seller had to be good faith in seeking
not to cause damage to the buyer”8. Moreover, as the principle of culpa
levis in abstracto emphasized, “the seller had to keep the asset in good
condition as a good householder, being liable for any damage caused by
its fault”9. Therefore, it is evident that, though the term ‘consumer rights’
was not stipulated, the Roman Law recognized the buyer’s or consumer’s
rights to some extent.
5
Iris Benöhr, EU Consumer Law and Human Rights (Oxford University Press 2013)
6
SB Zharkenova and LS Kulmakhanova, “Consumer Rights Protection in International and Municipal Law:
Problems and Perspectives” (2015) 18 European Research Studies 147; Benohr (n5)
7
M Radin, “Fundamental Concepts of the Roman Law” (1924) 12 California Law Review 393
8
Benohr (n 5)
9
Olariyu M, “Contracts in Roman Law” (RePEc) <[Link]
pdf> accessed August 01, 2021

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 KDU Law Journal
General Sir John Kotelawala Defence University, Sri Lanka

In addition to the Roman law, ancient Indian society also recognized

the protection of buyer’s rights. As Devi highlights, from the ancient
Vedic period (5000 BC to-2500 BC) many pieces of evidence could
be found with regard to protecting consumer interest10. According to
Manu’s Code of Conduct to Traders, “man who behaves dishonestly to
honest customers or cheats in his prices shall be fined in the first or in
the middlemost amercement”11. Furthermore, Kautilya’s Arthashastra
mentioned that “using of unstamped weights and measures, pressing
and forging false weight and measures….etc. are considered as
cheating and was fined heavily”12.

Both these ancient Roman and Indian examples reveal that the concept
of consumer rights originated from a very early period although it was
not categorized as a separate law. The modern application of the concept
of consumer rights could be found in the early 1960s13. Particularly in
the American context, consumer rights are subjected to huge political
attention and opened the doors to constitute separate consumer
policies due to the serious damage caused to the consumers as a result
of the power imbalance between consumers and the suppliers in the
health sector14.

This background paved the way for U.S President John F. Kennedy’s
historic speech on consumer rights in 1962. President Kennedy in
his Congressional speech declared four basic rights as the consumer
rights; namely, the right to safety, the right to choose freely, the right
to be informed and the right to be heard15. In this speech, President
Kennedy was deeply concerned about the consumer’s needs and
elaborated the importance of protecting consumer rights as follows:

If consumers are offered inferior products, if prices are exorbitant,

if drugs are unsafe or worthless, if the consumer is unable to

10
Devi (n 4)
11
AR Prasad, “Historical Evolution of Consumer Protection and Law in India” [2008] Journal of Texas Consumer
Law 132
12
Devi (n 4); Prasad (n 11)
13
Benohr (n 5)
14
ibid
15
Larson and Lawson (n 1)

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choose on an informed basis, then his dollar is wasted, his health

and safety may be threatened, and the national interest suffers.
On the other hand, increased efforts to make the best possible
use of their incomes can contribute more to the well-being of
most families than equivalent efforts to raise their incomes16.

As a result of President Kennedy’s revolutionary approach, various consumer

movements were established and later in 1985, the United Nations
constituted the UNGCP by expanding Kennedy’s “Bill of Consumer Rights”.
The UNGCP was revised in 1999 and 2016. Most importantly, Guideline 5 of
the Revised UNGCP indicates the legitimate needs which the guidelines are
intended to meet. According to the Guideline 5, the legitimate needs are;
a) Access by consumers to essential good and services
b) Protection of vulnerable and disadvantaged consumers
c) Protection of consumers from hazards to their health and safety
d) Promotion and protection of the economic interests of the consumers
e) Access by consumers to adequate information
f) Consumer education
g) Availability of effective consumer dispute resolution and redress
h) Freedom to form consumer and other relevant groups or organizations
i) Promotion of sustainable consumption patterns
j) Protection for using electronic commerce that is not less than the
other form of commerce
k) Protection of consumer privacy.

Hence, it is evident that the UNGCP considered the protection of

consumers using e-commerce and the protection of consumer privacy
as parts of the legitimate needs17. Thus, it can be argued that the
concept of consumer rights has widened its scope from time to time
according to the needs of society and modern consumers.
16
“John F. Kennedy: Special Message to the Congress on Protecting the Consumer Interest.” (The American
Presidency Project 1999)< [Link] accessed 23 May, 2021
17
UNCTAD secretariat, “Consumer Protection in Electronic Commerce Note by the UNCTAD Secretariat”(United
Nations Conference on Trade and Development 2017) <[Link]
cicplpd7_en.pdf. > accessed October 14, 2021

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 KDU Law Journal
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Consumer Protection and Consumerism

As a result of the evolution and recognition of consumer rights,
different parties like international organizations, State parties and
Non-Governmental Organizations (hereinafter NGOs) worked towards
to safeguard consumer rights. As Chaudhry, Chandhiok and Dewan
correctly define,“consumer protection means safeguarding the rights
and interests of consumers. It includes all the measures aimed at
protecting the rights and interests of consumers”18. The UNGCP
is the main international legal instrument which aims to provide
comprehensive consumer protection mechanisms at the global level.

As a result of the growing global and regional attention for consumer

rights protection, the concept of consumerism has emerged as a
revolutionary concept. The term ‘consumerism’ denotes the idea
of consumer movements or consumer activism19. Moreover, Devi
has further observed that it refers to “the broad range of activities
of government, business, and independent organizations that are
designed to protect individuals from policies that infringe upon their
rights as consumers”20. One of the main objectives of consumerism is to
reduce the power imbalance between the supplier and the consumer21.
Therefore, it can be argued that on the one hand, consumerism is a
positive social force which encourages and compels all the stakeholders
to safeguard the consumer interest. On the other hand, consumerism
can be considered as a leading concept which empowers the consumers
in order to be aware and safeguard their own rights22.

Notably, as Devi points out, there were various reasons behind the
rise of consumerism historically. Particularly, the increase of literacy
and education, the rise of prices of products, product variations and
competition of the market, as well as the state intervention on consumer-
supplier relationship have tremendously influenced consumers to be

18
K Chaudhry,T Chandhiok and P Dewan, “Consumer Protection and Consumerism in India” (2011) 1
International Journal of Multidisciplinary Research 83
19
Devi (n4)
20
ibid
21
KB Bello, JB Suleiman and I Danjuma I, “Perspectives on Consumerism and Consumer Protection Act in
Nigeria” (2012) 4 European Journal of Business and Management 72
22
Devi (n 4)

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Consumer Rights in the Context of Human Rights:
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A Legal Analysis March, 2022
ISSN 2783-8870

more aware of their rights and stand against the monopolistic powers
of the traders and multinational companies23. Then, as a result of the
consumerism and consumer movements, the traditional contract law
principle of caveat emptor-let the buyer beware- is no longer valid in
the modern commercial contracts and instead of that, the concept
of caveat venditor-let the vendor beware- is prevailed24. Steiner and
Steiner have clearly emphasized this argument as follows;

Consumerism does not mean Caveat Emptor-Let the Buyer

Beware. It is replaced by Caveat Venditor-Let the Seller Beware.
It does mean, however, that protecting the consumer is politically
acceptable and that the government will survey consumer
demands for better treatment and respond to them with new
guidelines for regulations over business25.

Therefore, it can be argued that the concept of consumerism has directly

or indirectly impacted on the establishment of consumer protection
mechanisms at the global, as well as the domestic level. However, in
the Sri Lankan context, consumerism is still in a very primitive position.
According to Dr. Saman Kalegama, the Executive Director of the IPS, “in
Sri Lanka, consumerism and consumer activism are less organized and
less powerful ”26.

Consumer Rights in Human Rights Context

As discussed in the previous section, as a result of consumerism and
other positive movements for safeguarding consumer rights, the
concept of consumer rights has been subjected to legal recognition
at the international and domestic levels. UNCTAD highlights that
presently, 51 percent of the countries worldwide are having separate
consumer protection legislation27. As a result of this focused attention,
23
ibid
24
G Kaur, “Concept of E-Consumerism: A Need to Revamp Movement for E-Consumerism in India” [2015] SSRN
Electronic Journal; Narveson J, “Consumers Rights in the Laissez-Faire Economy: How Much Caveat for the
Emptor” (2004) 7 Chapman Law Review 181; Devi (n 6)
25
Steiner GA and Steiner JF, Business, Government, and Society: a Managerial Perspective: Text and Cases
(Random House Business Division 1980)
26
Nanayakkara S, “Sri Lankan Consumers Seen as Powerless” (The Island2015) <[Link]
php?page_cat=article-details&page=article-details&code_title=121569> accessed October 11, 2021
27
“Online Consumer Protection Legislation Worldwide” ([Link]) <[Link]
and_ICTs/ICT4D-Legislation/[Link]>

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 KDU Law Journal
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some scholars argue that consumer rights should be included and

protected as human rights28. Therefore, this section analyses this
ongoing debate and the benefits of strengthening consumer rights
protection in an online context.

Nature and Scope of Human Rights

The term ‘rights’ is “itself controversial” and subjected to scholarly
debate29. According to the natural law perspective, rights are inherent
to mankind by nature and it reflects the social value of the community30.
As John Lock has emphasized in his social contract theory, in the state
of nature every man was entitled to some inalienable rights as the
right to life, liberty, and property. As a result of the social contract
between the citizens and ruling government, the Government in
power should have an obligation to ensure the rights and wellbeing
of the citizens31. Conversely, the positivist approach highlighted that
“if a rule of conduct cannot be enforced, it is meaningless to describe
it as a law”32. Therefore, positivism only accepted the specific rights
derived from the legal order or the constitutional structure of the
legal system33. All these theoretical underpinnings have influenced
to develop the concept of human rights which has widespread
acceptance in the global community today.

The United Nations defines human rights as “rights inherent to all human
beings, regardless of race, sex, nationality, ethnicity, language, religion, or
any other status”34. Former Commonwealth Secretary, Sridath S. Rampal
provided a very interesting introduction for human rights as follows;

Human rights are as old as human society itself, for they derive
from every person’s need to realize his essential humanity.
28
FO Ukwueze, “Towards a New Consumer Rights Paradigm: Elevating Consumer Rights to Human Rights in
South Africa” (2016) 32 South African Journal on Human Rights 248; Devi (n 6); S Deutch, “Are Consumer Rights
Human Rights” (1994) 32 Osgoode Hall Law Journal 538
29
Shaw M, International Law (5th edn Cambridge University Press 2003)
30
ibid
31
MDA Freeman, Lloyds Introduction to Jurisprudence (6th ednSweet & Maxwell 1994); P Sieghart, The
International Law of Human Rights (2nd ednClarendon Press 2003)
32
Ibid
33
Show (n 29)
34
[Link], “Human Rights” <[Link] accessed June 11,
2021
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They are not ephemeral, not alterable with time and place
and circumstances….they are important, sometimes essential
elements of the machinery for their protection and enforcement;
but they do not give rise to them. They were born not of man, but
with man35”.

As this statement highlights, human rights can be defined as an

indispensable set of rights inherent to mankind without any discrimination.
The United Nations Declarations of Human Rights (hereinafter UDHR) in
1948 was the first attempt to safeguard human rights and fundamental
freedoms by the United Nations36 (hereinafter UN). The preamble of
the UDHR emphasizes that “recognition of the inherent dignity and of
the equal and inalienable rights of all members of the human family is
the foundation of freedom, justice and peace in the world”. In 1966, the
International Covenant on Civil and Political Rights (hereinafter ICCPR)
and the International Covenant on Economic Social and Cultural Rights
(hereinafter ICESR) were adopted by the UN and the most importantly,
both these covenants have binding authority, unlike the UDHR.

All the rights included in the UDHR, ICCPR, ICESR and other human rights
treaties can be classified into different categories and generations.
Basically, human rights are categorized as civil, political, economic social
and cultural rights. Today, three generations of rights are discussed as a
modern classification of human rights37. First time in 1977, a French jurist
Karel Vesak characterized human rights in term of ‘three generations’38.
The following figure 1 presents the three generations of human rights.

35
International Commission of Jurists, Development of Human Rights and the Rule of Law (Pergamon Press
1981)
36
Sieghart (n 31)
37
SH Sadeghi, MR Sarani and H Ravandeh, “The Concept of ‘Right’ and Its Three Generations” 5 International
Journal of Scientific Study 37
38
P Macklem, “Human Rights in International Law: Three Generations or One?” (2015) 3 London Review of
International Law 61

33
 KDU Law Journal
General Sir John Kotelawala Defence University, Sri Lanka

Figure 1: Three generations of human rights

Second
First Generation Third Generation
Genetration
(Civil and
(Economic and Social & (Solidarity Rights)
PoliticalRights)
Cultural Rights)

According to Vesak’s classification, first-generation rights include civil and

political rights such as the right to life, freedom of expression, equality
before the law, right to vote etc. Particularly, those rights are enshrined
in both the UDHR and ICCPR39. The Second generation is concerned with
economic, social and cultural rights including the right to work, freedom
of association, the right to education etc. Mainly, the ICESR contains
the second generational rights40. Most importantly, Vesak recognizes
the third generation as “one that the international community is now
embarking on41”. Sadeghi and others opine that the third generation
ascertained as a result of ‘new needs of human42’. Vesak has named
them as ‘solidarity rights’ which include the right to development, right
to a healthy environment, right to self- determination etc43. However,
in contrast to the Vesak’s three- generation approach, Macklem argue
that understanding human rights in three generations is inaccurate and
misguided44.

When analyzing consumer rights in the human rights context, there

is an ongoing debate about whether consumer rights could be
considered as a third generation right? Moreover, it is questionable
whether consumer rights have the potential to become “soft human
39
ibid; Cornescu A, “The Generations of Human Rights,” the Conference Proceedings, Masaryk University
(2009)
40
Cornescu (n 39)
41
Macklem (n 37)
42
Sadeghi, Sarani and Ravandeh (n38 )
43
Macklem (n 43); Cornescu (n 37)
44
Macklem (n 37)

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rights45?”. The following section briefly demonstrates the positive and

negative arguments for considering consumer rights as human rights.

Are Consumer Rights Human Rights?

The concept of consumer rights has become more relevant since the
end of Second World War II46. As discussed in the previous section,
human rights have also gained great importance and widespread
acceptance in the global community through the UDHR, ICCPR, ICESR
and other international and regional legal instruments. In recent
decades, several scholars have paid attention to include consumer
rights into the human rights context. Deutch has made a significant
contribution to develop this argument by suggesting that “consumer
rights have the potential to become soft human rights leading finally
to full recognition as human rights47”.

In order to build up this thesis, Deutch has used several arguments. First,
he contends that there is no exclusive list of human rights and there
are no common criteria to determine or accept a particular claim as a
human right. Also, human needs have changed from time to time and
therefore he argues “there is no reason to prevent the inclusion of
additional rights”. Second, he recognizes consumer rights as individual
rights instead of group rights48. Thus, Deutch argues that consumer
rights should be acknowledged as human rights. Third, he emphasizes
the co-relation between the right to human dignity and consumer rights
as follows:

In a consumer society, protection of (the) individual consumer

is part of maintaining human dignity. If not given the right to
fair trade, the right to a fair contract and the right of access to
court a person’s dignity is disregarded49.

45
Kingisepp M, “The Constitutional Approach to Basic Consumer Rights. ”[2012] Juridica International 49
46
Imperatore L, “Consumer Rights under International Law” (Nomodos2018) <[Link]
[Link]/2018/03/22/consumers-rights-under-international-law/> accessed October 16, 2021;
Deutch (n 33)
47
Deutch (n28)
48
ibid
49
ibid

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 KDU Law Journal
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Ukwueze also supports this argument and emphasizes that protecting

the consumer is not only limited to protecting human life but it also
embodies the notion of protecting human dignity against monopolistic
powers of companies50. Fourth, Deutch argues that some of the modern
theories of human rights such as the theory of justice, principles of
fairness and equality also provide the basis for consumer protection
and accordingly it can be justified consumer rights as human rights51.

All these arguments presented by Deutch and other scholars indicate

that consumer rights have the potential to be considered as third
generation human rights. As mentioned earlier third-generation human
rights have emerged as a result of the new needs of the people. But still,
those rights are considered as soft laws, which only have limited binding
force. As Benohr denotes, third generation rights play a subordinate role
and remain contested52. Therefore, as these scholars claim there is a
need to include the consumer rights also into the category of the third
generation until it obtains the full recognition as human rights.

Moreover, scholars point out that consumer rights protection as

a base for acknowledging and implementing some human rights
which are enshrined in the international human rights instruments.
Benohr claims this as “implicit consumer protection in human rights
agreements53”. The first example of this argument is the right to an
adequate standard of living. As Imperatore highlights “in modern
society (the) right to consume seems to be an essential part of the
right to the adequate standard of living54”. Article 25 (1) of the UDHR
recognizes the right to the adequate standard of living as follows;

“Everyone has the right to a standard of living adequate for the

health and well-being of himself and of his family, including
food, clothing, housing, and medical care and necessary social
services…”

50
Ukwueze (n 28)
51
Deutch (n28)
52
Benohr (n 5)
53
ibid
54
Imperetor (n 48)

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Accordingly, it can be argued that although the UDHR does not include
the particular term of consumer protection, in a broad sense Article
25 (1) serves as a basis for consumer protection.

Moreover, Article 11 of the International Covenant on Economic Social

and Cultural Rights (ICESCR) also highlights the right to an adequate
standard of living including the “right to adequate food, clothing,
housing and to continuous improvement of living conditions”. Deutch
emphasizes that consumer protection as an implementation of these
rights and means to achieve these goals55. Following Deutch’s argument
Ukwueze highlights the same opinion and states that “adequate food
necessarily includes the quality of food, safety, information and fair price,
all of which are achieved through consumer protection legislation56”.

Furthermore, Article 12 of the ICESCR envisages the right to physical and

mental health. It further includes the “improvement of environmental
and industrial hygiene and the prevention of disease”. Right to safety
and prevention of individuals from hazardous products is also one of
the basic rights of consumers, as well as the main goal of consumer
protection57. Therefore, it can be argued that Article 12 of the ICESCR
also impliedly acknowledges consumer rights as human rights.

Ukwueze and Benohr further observe that, right to access to justice,

right to fair trial and right to redress which are enshrined in the many
international human rights instruments are closely connected with
consumer protection58. Article 8 of the UDHR states that “everyone has
the right to an effective remedy by the competent national tribunals for
acts violating the fundamental rights granted him by the constitution or
by law”. As mentioned in the Guideline 37 of the UNGCP, development
of a fair, effective, transparent, and impartial mechanism to address
consumer complaints is an essential task of consumer protection
process. In addition to that, the right to education, which is embodied
in Article 13 of the ICESR is also compatible with the consumer’s right to
55 Deutch (n 28)
56 Ukwuez (n 28)
57 Ibid; Benohr (n 5)
58 ibid

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 KDU Law Journal
General Sir John Kotelawala Defence University, Sri Lanka

education enshrined in the Guideline 42 of the UNGCP59.

In addition to international human rights instruments, some regional

human rights instruments also expressly and impliedly recognize
consumer rights protection as a part of human rights. For example,
Article 38 of the Charter of Fundamental Rights of the European
Union (hereinafter ‘the Charter’), highlights that “Union policies shall
ensure a high level of consumer protection60”. It can be argued that this
provision is a direct recognition of consumer protection as human rights.
However, Kingisepp contends that this provision forms “only a broader
constitutional view that a high level of consumer protection is part of the
Union’s mission61”. Nevertheless, as Benohr argues some provisions of
the European Convention of Human Rights (hereinafter ECHR) impliedly
acknowledges consumer rights as human rights. As she observes, Article
10 and 11 of the ECHR include freedom of expression and freedom of
association, “which may protect the right of consumers or consumer
organizations to form opinions and to receive and divulge information62”.

Moreover, in the international level, the UNGCP acts as the major

legal instrument for the protection of consumer rights. Even though
the UNGCP does not have a binding force as same as an international
convention, the global acceptance of the UNGCP can be considered as
a general recognition of consumer protection as a universal right63. In
its early stages, Deutch viewed the UNGCP as an implementation of
ICESR and the UDHR. Therefore, it can be argued that today, consumer
rights are in the process of acquiring their validity as a third-generation
human rights in the international arena.

Furthermore, there are instances of constitutional recognition of consumer

rights in the domestic level64. Article 60 (1) of the Constitution of the
Portuguese Republic recognizes consumer rights as constitutional rights.
According to Article 60 (1);
59
Deutch (n 28)
60
Kingsapp (n 45)
61
ibid
62
Benohr (n 5)
63
ibid; Ukwueze (n 28)
64
(Kingisepp (n 45)

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Consumers shall possess the right to good quality of the goods

and services consumed; to training and information; to the
protection of health, safety, and their economic interests; and
to reparation for damage.

This provision has more importance when considering consumer rights

as human rights because it directly recognizes consumer rights as
fundamental rights65. In addition, the Constitution of Spain also includes
a provision in Chapter III, which deals with “the Guiding Principles of
Economic and Social Policy”. Accordingly, Article 51 of the Constitution
of Spain states that “the public authorities shall guarantee the protection
of consumers and shall, by means of the effective measures safeguard
their safety, health and legitimate economic interests”. Both these
constitutional initiatives pave the way for making a strong argument in
favor of upgrading consumer rights into a similar level of human rights66.

Notably, the aforementioned arguments and examples clearly support

the view of considering consumer rights as a part of human rights.
However, there are some opposing arguments which refute the view of
elevating consumer rights into the context of human rights. On the one
hand, there is a common hesitation in the international legal sphere to
upgrade new rights as human rights. As Benohr has correctly pointed out,
“the gradual proliferation of new human rights claims in law and politics
has led to some skepticism and suggestions for stronger quality controls
of these rights67”. On the other hand, some scholars like Kingisepp argue
that there is no need to recognize consumer rights as human rights.
He pointed out two reasons for refusing human rights value of the
consumer rights. First, as he argues, a violation of a human right leads
to death or dire suffering and, in contrast, violation of a consumer rights
does not normally cause such drastic consequences. Second, consumer
rights do not contain the characteristic of ‘abstractness’ which include
human rights68.
65
Ukwueze (n 28); Kingisepp (n 45); Deutch (n 28)
66
Ukwueze (n 28)
67
Benohr (n 5)
68
Kingsepp (n 48)

39
 KDU Law Journal
General Sir John Kotelawala Defence University, Sri Lanka

However, according to the researcher’s point of view, it is difficult to

accept Kingisepp’s first argument because, as discussed earlier basic
consumer rights like the right to safety, right to be informed etc. are
directly connected with right to life and right to health. Therefore, it is
submitted that any violation of basic consumer rights have a serious
impact on human lives.

Conclusion
The main theoretical analysis of this paper focuses on the existing
debate on recognizing consumer rights in the context of human rights.
Generally, it is evident that the concept of consumer rights has less
attention compared to the other right based approaches like human
rights. Notably, in addition to the UNGCP, there is no internationally
recognized legal instrument which is directly relevant to the consumer
rights protection. From the International law perspective, as mentioned
earlier, the UNGCP is a soft law which does not have legally binding
force towards the state parties69.

Conversely, human rights are a well-known and globally accepted,

legally enforceable phenomenon through several international
conventions and protocols. Therefore, elevating consumer rights as a
part of human rights would positively impact on safeguarding consumer
rights in various ways. First, it will cause to gain more attention to
consumer rights violations occurring when face to face as well as
online consumer transactions. Second, it is obvious that, if consumer
rights are recognized as human rights, it will strengthen consumer
rights protection70. Particularly, some basic consumer rights including
the right to privacy, right to information and right to redress could be
implemented as human rights and it will enhance the protection given
for consumers against serious infringement of their rights.

69
Y Yu and DJ Galligan, “Due Process of Consumer Protection: A Study of the United Nations Guidelines
on Consumer Protection” [2015] FLJS <[Link]
process_w_fljs_logo.pdf. > accessed July 8, 2021
70
M Eseyin and CW Chukwuemeka, “Articulating Consumer’s Rights as Human Rights in Nigeria” (2018) 72
Journal of Law, Policy and Globalization 124

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