Introduction
The idea that all human beings are endowed with intrinsic dignity has unquestionable importance in contemporary society. It finds its origins in philosophical approaches, most of them endeavouring to attribute to the human species a special quality that evokes a state of dignity — notably, by religious thought according to which the mentioned quality would derive from humanity’s “creation” or, in rationalist philosophical thought, from the human ability to behave according to reason. Today, human dignity is referred to in national constitutions and in international legal instruments. These legal instruments frequently resort to the idea of inherence since human dignity is not attributed to one or a few human beings but, rather, to all human beings without distinction. The postulate according to which dignity is inherent to human beings, therefore, is important to extending its field of influence and to avoiding discrimination.
Although the expression “human dignity” is well known, its definition is still under avid discussion. Theorists, while making efforts to identify its dominant elements, diverge on the function and consequences of the vagueness of its definition. In this article, the philosophical origins of human dignity are described as a way to identify different approaches to human dignity historically. This analysis is followed by an examination of how international legal instruments address human dignity. International legal provisions include general and specific approaches found in universal or regional instruments or declarations. Examples of general approaches can be observed in the Universal Declaration of Human Rights,Footnote 1 the Charter of the United Nations (UN Charter),Footnote 2 as well as in regional regimes, such as the American Convention on Human Rights (ACHR)Footnote 3 and the European Union’s Charter of Fundamental Rights. Footnote 4 Human dignity is also invoked in specific contexts, including those elaborated to address certain categories of human rights, such as the International Covenant on Civil and Political Rights (ICCPR)Footnote 5 and the International Covenant on Economic, Social and Cultural Rights (ICESCR);Footnote 6 as well as in instruments governing human rights designed to protect people living under special social circumstances leading to discrimination or prejudice, such as the International Convention on the Elimination of All Forms of Racial Discrimination,Footnote 7 the Convention on the Elimination of All Forms of Discrimination against Women,Footnote 8 the Convention on the Rights of Persons with Disabilities,Footnote 9 the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment,Footnote 10 and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Footnote 11
After reviewing the relevant international legal instruments, the article analyzes how international jurisprudence has absorbed, interpreted, and applied the human dignity postulate. Decisions delivered by the European Commission on Human Rights, the European Court of Human Rights, the Inter-American Court of Human Rights, the African Commission on Human and Peoples’ Rights, and the African Court on Human and Peoples’ Rights are discussed in order to demonstrate the aspects of human dignity that are most emphasized by the cases. It will be shown that international jurisprudence frequently resorts to human dignity in cases related to social minorities, including Indigenous peoples and racial and ethnic minorities. It is further used as an important concept to address the conditions of people traditionally subjected to discriminatory measures, such as women, members of the lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI) communities, or persons with disabilities. It will also be demonstrated that the principle of human dignity is extremely valuable in evaluating conditions of detention in order to clarify that, in prison, one’s suffering must not exceed that associated with the deprivation of liberty as such — thus, food and health care shall be available to persons in such circumstances.
Finally, the article discusses some directions for identifying the elements of human dignity. It addresses the ideas of universalization, flexibility, and adaptability to new circumstances as core elements of human dignity. For this purpose, it resorts to positions taken in various international fora, whether through guidelines, recommendations, speeches, or other public documents, which build on the findings of the previous sections. It asserts that the idea of inherence and the lack of a closed definition are special attributes of the human dignity concept. We do not regard the absence of a clear definition to be a failure of international and national legal orders in this regard. It is argued, rather, that this is a tool for expanding human dignity’s field of influence. Moreover, we do not consider that the idea of inherence precludes the notion that rights are historical and secularized constructs. The idea of inherence is part of the postulate of human dignity and corresponds to a social construct. It aims to avoid any sort of discrimination by proclaiming that every human being is entitled to dignity and that this idea pertains to every social group and every local culture. In short, the idea of inherence is treated, in this article, as an extrinsic recognition of an intrinsic condition.
Furthermore, we do not consider that the lack of a closed and immutable definition implies converting the principle into a meaningless rhetorical device. We argue that, even though it has no definitive formulation, it is possible for scholars and institutions to ascertain the content of human dignity at a certain time or place or in a specific case before an international or national tribunal. It will be seen that, today, human dignity already plays a concrete role in judicial decisions, and it also operates as a mechanism for integrating national and international legal orders, since its purpose is to be pursued in every legal regime. We also find that human dignity is commonly referred to in situations where a person is in a position of particular social vulnerability, as in the case, for example, of minorities, detainees, or persons affected by climate change, because the potential precariousness of such positions requires an emphasis on their dignity. Such emphasis is treated in this article as evidence that the content of human dignity can be found even in the absence of a closed definition. The fact that human dignity is frequently invoked in such cases is also regarded as evidence that the concept tends to be more decisive in situations where the connection with the other dimensions of human rights has been weakened. But it does not mean that such circumstances circumscribe in an exhaustive manner the field of its relevance.
Human Dignity in Its Philosophical Origins
Although philosophical discussionFootnote 12 of human dignity dates to ancientFootnote 13 times, human dignity has recently been embodied in international legal instruments and nationalFootnote 14 constitutions. The inherent dignity of the human person has been recognized as the foundation for human rights articulated in international law since the Second World War.Footnote 15 Yet, despite its recognition in various international legal instruments, the concept of human dignity remains devoid of a common definition,Footnote 16 whether in religious and philosophical traditions or in the constitutional and international law areas.Footnote 17 According to Ronald Dworkin, anyone who professes to take rights seriously must accept “the vague but powerful idea of human dignity.”Footnote 18 Ingo Wolfgang Sarlet states that human dignity cannot be fixed and static but must be harmonized with the diversity of values present in modern democratic societies. He argues that, currently, “human dignity can be understood as an intrinsic quality of human beings that distinguishes and qualifies them to be respected by the state and by society; makes human beings holders of rights and duties that ensure protection against inhuman oppression; ensures the promotion of the minimum existential conditions for living healthily; and gives them the opportunity to freely and actively pursue happiness and enjoy their lives in the community.”Footnote 19
The dignity of human persons is increasingly referred to as a basic ideal and widely invoked as a legal and moral ground for protest against degrading and abusive treatment.Footnote 20 According to Erin Daly and James May, the concept of human dignity refers to “the inherent humanness of each person and recognizes and reflects the equal worth of each and every member of the human family, regardless of gender, race, social or political status, talents, merit, or any other differentiator.”Footnote 21 Philosophers agree that there is not a common definition of human dignity, and, as with human rights more generally, it is often regarded as a Western concept. In contemporary human rights discourse, the concept of human dignity features more prominently due particularly to the recognition of poverty and climate change as major violations of human rights as well as the emergence of certain challenges caused by modern science, particularly biomedicine and genetic engineering.Footnote 22
The paradigm of human dignity is conceived as a universal ethical and legal principle, stressing that all human beings have intrinsic worthiness and inalienable rights by the mere fact of being human.Footnote 23 Although human dignity is considered a moral-philosophicalFootnote 24 term that has several levels of meaning corresponding to different linguistic and cultural functions,Footnote 25 the universality of human rights is based on the recognition of human dignity by all cultures.Footnote 26 Once universal, states and transnational organizations must put human rights into practice and respect and protect them.Footnote 27 Human dignity becomes a limit and objective of society, in general, and of the state, in particular. The limit means never being able to become a thing or an object — an instrument for other purposes and not an end in itself. As an objective, human dignity determines specific duties of protection, especially by the state, for the protection of human dignity, ensuring it through positive or performance measures, such as removing obstacles that hinder the development of human dignity and creating the conditions that enable the fullest enjoyment and exercise dignity.Footnote 28
Human dignity implies the necessary recognition that all human beings, equal among themselves, are entitled to equal dignity, ontologically speaking. In this sense, dignity is integrated with all human rights — whether civil, political, economic, social, or cultural — and belongs equally to all human beings, without any form of discrimination in this respect.Footnote 29 Human rights are a particular social practice that aims to realize a distinctive substantive conception of human dignity.Footnote 30 Human dignity’s origins show that the idea of inherence has accompanied its entire philosophical trajectory. The purpose of expanding human dignity by regarding it as intrinsic to individuals represents, then, the central point of the concept. Whether considered in religious perspective, whereby every person must be dignified by being considered a divine creation, or in rationalist philosophical terms, in which every person is considered to have intrinsic value by virtue of being graced by reason, the postulate is to expand human dignity to all human beings, avoiding discrimination. As will be seen, in the era of human dignity as a legal principle and right, it not only influences the entire legal system but also drives efforts to adapt its application to specific realities and situations in which human beings may be placed.
Human Dignity in International Law
The concept of human dignity has played an important role in the development of international human rights law, not in providing an agreed content to human rights but, rather, in contributing to particular methods of interpreting human rights. According to Christopher McCrudden, the basic minimum content of the principle seems to have at least three elements: (1) the intrinsic worth of all human beings; (2) the recognition and respect of that intrinsic worth by others; and (3) the duty of states to protect human rights. Despite the existing consensus on this minimum core, McCrudden argues that there are significant political and philosophical differences of understanding regarding its three elements. In particular, there are differences as to what intrinsic worth consists of and regarding the kinds of treatment that offend that intrinsic worth.Footnote 31 Ginevra Le Moli points out that, within a legal system, we can in fact see that the principle of human dignity has three main features: (1) it is a structural element (indeed, a necessary foundational element of the international legal system); (2) it possesses legal substance, which is the protection of the human dignity of all individuals and the injection of considerations of humanity, concretized through a series of legal norms, into different areas of international law; and (3) it is an obligation-creating principle, which derives directly from its legal substance and concretizations.Footnote 32
Respect for human dignity is considered a fundamental principle. Due to this fundamentality, it need not be explicitly included in normative texts in order to produce effects. This assumption does not reduce the principle to a natural right. The phenomenon is broader than exaggerated positivism might suggest; law is a function of society and not a product of the state.Footnote 33 As a fundamental general principle, it represents “the highest common denominator” of relevant international rules and finds expression in treaties and customary international law.Footnote 34 As a fundamental principle, however, human dignity may need to be balanced against other principles or collective goals.Footnote 35 Muriel Fabre-Magnan, on the other hand, argues that, while fundamental rights and freedoms can be balanced against each other, the principle of human dignity cannot be opposed to any fundamental right or freedom, insofar as it constitutes the basis of other human and fundamental rights.Footnote 36
Dignity can be considered as a right and a principle recognized in national and international legal instruments and can also be used as a criterion for interpretation to provide a broader sense of human rights. In this sense, human dignity has significant legal functions and embodies numerous dimensions of fundamental rights, including personal integrity, non-discrimination, freedom of choice and minimum conditions for a decent life, among others. Humiliating treatment, discrimination in all its facets, and inequality are evident denials of human dignity. Human dignity is asserted in several international legal instrumentsFootnote 37 applicable to various aspects of international social dynamics and to special thematic areas or regions.Footnote 38 General provisions can be found in legal instruments such as the Universal Declaration of Human Rights Footnote 39 and the UN Charter Footnote 40 as well as in regional instruments such as the ACHR Footnote 41 or the EU’s Charter of Fundamental Rights. Footnote 42 Special thematic instruments invoking human dignity include the ICCPR,Footnote 43 the ICESCR,Footnote 44 the International Convention on the Elimination of All Forms of Racial Discrimination,Footnote 45 the Convention on the Elimination of All Forms of Discrimination against Women,Footnote 46 the Convention on the Rights of Persons with Disabilities,Footnote 47 the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,Footnote 48 and the International Convention on the Protection of the Rights of All Migrant Workers and Member of Their Families. Footnote 49
International legal instruments also embrace, in some cases, the assumption of inherence. In the Universal Declaration of Human Rights’s preamble, it is stated that the recognition of inherent dignity and equal inalienable rights is the foundation of freedom, justice, and peace in the world.Footnote 50 Article 1 of the declaration lays out that every person is equal in dignity and rights.Footnote 51 The UN Charter’s preamble also affirms faith in fundamental rights, in the dignity and worth of the human person, and in the equal rights of men and women.Footnote 52 Like the UN Charter, the ICCPR holds in its preamble that inherent dignity is one of the foundations of freedom, justice and peace in the world,Footnote 53 and the International Convention on the Elimination of All Forms of Racial Discrimination has a preambular provision considering that dignity and equality are inherent in all human beings and reiterating that the Universal Declaration of Human Rights proclaims that all human beings are equal in dignity.Footnote 54 Similarly, the preamble of the Convention on the Elimination of All Forms of Discrimination against Women states that its spirit is to reaffirm faith in fundamental human rights and in the dignity of the human person, and it recalls that discrimination against women violates equality of rights and respect for human dignity.Footnote 55 Furthermore, the Convention on the Rights of Persons with Disabilities regards as its purpose to promote and respect inherent dignity,Footnote 56 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment affirms that the rights contained therein are results of the recognition of inherent human dignity.Footnote 57
This sort of approach evidences an assumption that there is worth and dignity in a human person abstractly considered: it postulates that a human person has an intrinsic right to dignity that must be respected. This assumption has the effect of extending protection to human persons living in different social conditions, special circumstances, or regions. If it is inherent — deriving from the mere fact of being human — human dignity’s applicability cannot vary in terms of social position, circumstance, or region. Therefore, as a basic assumption to be followed by specific normatization, human dignity operates as a legal principle. Thus, based on the idea of inherence, the international legal order aspires to the universalization of human dignity. The postulate of inherent human dignity is enshrined in the international legal order, widely accepted by international society, confirmed by tradition, and resonant in pluralistic cultures.Footnote 58 The assumption of inherence must therefore be understood, at the legal level, as an extrinsic recognition of an intrinsic condition.
Nevertheless, if the postulate of inherence is embodied in the positive international legal order, it must be considered to have positive legal content. The idea of inherence does not set aside the perception that rights are, historically speaking, achievements. The idea of inherence is subject to secularization, as with any other aspect of human rights. Extending the feature of dignity to human beings in every social group, culture, or nationality must be considered a historical achievement per se. Yet it also means that the international legal order has reached some level of consensus that is conducive to universal recognition. Such a finding is underlined by the fact that, as we have seen, the idea of inherence is present in the most important international legal instruments, such as the Universal Declaration of Human Rights.
The second feature of the postulate of human dignity is its vagueness — as has been pointed out — in the sense that its normative formulation refrains from affixing a decisive and immutable definition to human dignity. Traditionally, this has been evidenced by a “negative” approach whereby the international legal order identifies specific examples of violation of the principle but, on the whole, maintains an open definition in order to enable an evolutionary and flexible understanding of the concept. Considering that international society is mired in social complexity — in which new conceptions of human dignity are always emerging by virtue of new social positions and conditions occupied by human beings — the absence of a fixed definition is a tool for permitting its continuity and adaptation to newly arising contexts.
In this vein, the vagueness of human dignity’s definition would be better understood if it were treated as openness, as this more fully captures human dignity’s intelligibility. It does not mean that it is impossible for scholars or institutions to determine its general sense in a given period or its applicability to a specific concern. It means that the principle possesses a dynamic feature and resorts to the absence of a closed definition as a second way — besides the idea of inherence — to permit expansion of its influence and its aspiration to universalization.Footnote 59 In sum, through vagueness of definition, the legal principle of human dignity can be compared to the first liquid to fill a new receptacle — it can be human rights law’s first response to newly emerging social circumstances.
Once established as a legal principle, other international instruments enhance human dignity as a legal right that operates in specific domains, thus reaffirming its existence as both a principle and a right. The ACHR announces, in Article 5.2, that there will be no torture or cruel punishment or treatment, as a way of respecting the inherent dignity of the human person.Footnote 60 Further, Article 11.1 addresses the recognition of human dignity as a right: “[E]veryone has the right to have his honor respected and his dignity recognized.”Footnote 61 In the same vein, Article 1 of the EU’s Charter of Fundamental Rights is titled “Dignity” and provides that human dignity is inviolable and shall be respected and protected.Footnote 62 The ICCPR, in Article 10(1), identifies treatment in accordance with human dignity as a right of all persons deprived of their liberty.Footnote 63 Article 13 of the ICESCR provides that everyone has the right to education on the basis that it promotes the full development of human personality and the sense of human dignity.Footnote 64 Article 39 of the Convention on the Rights of the Child provides that states parties shall “promote physical and psychological recovery and social reintegration of a child victim of … any form of neglect, exploitation, or abuse; torture and any other cruel, inhuman or degrading treatment or punishment; or armed conflict” in an environment fostering health, self-respect, and dignity.Footnote 65 The Universal Declaration on Bioethics and Human Rights commands that human dignity shall be fully respected.Footnote 66
The special properties of the principle of human dignity — aspiring to universality by the idea of inherence and through vagueness of definition — enable it to promote interpretation of different dimensions of human rights, by exercising its influence over instruments governing individual liberties, social and economic conditions, and the vulnerabilities of special collectivities — such as those subject to discriminatory treatment, for instance. Thus, the principle is intended not only to be applied if society changes but also to integrate international and national legal systems under its auspices by representing the contact point among these different legal spheres. In any case, it is evident that instruments addressing the human rights of social minorities or other groups in specific circumstances resort to human dignity as a way of vindicating the enforcement of the whole body of human rights in such specific domains.
From such legal foundations, human dignity is also the object of a developed jurisprudence emanating from international adjudicative bodies operating in different spheres, as will be demonstrated next.
Human Dignity in International Jurisprudence
Although considering that human dignity plays an important role in human rights adjudication, McCrudden argues that its vagueness favours judicial discretion. Reviewing judicial cases coming from international, regional, and local adjudicatory bodies, he observes that, in the International Court of Justice, the concept of dignity is mostly associated with the dignity of states. However, dignity applied to human rights contexts has also appeared in some dissenting opinions, as in the case, for example, of the opinion of Judge Kōtarō Tanaka in the South West Africa case.Footnote 67 Human dignity, otherwise, is more frequently raised by human rights adjudicative bodies, such as the European Commission on Human Rights and the European Court of Human Rights.Footnote 68
The same can be found in relation to the Inter-American Court of Human Rights (IACtHR). In the case Kuna Indigenous People of Madungandí and Emberá Indigenous People of Bayano and Their Members v Panama,Footnote 69 the court decided that Panama had violated Article 21 of the ACHR. From 1972 to 1976, the Indigenous peoples, the Kuna of the Madungandí and the Emberá of Bayano, were forced to abandon their ancestral territories, which were flooded by the reservoir of a dam. They argued that, as they lacked any other alternative, they were forced to relocate to new lands offered by the state, which it said were of better quality and greater quantity, and to accept the economic compensation that was offered in exchange for the destruction and flooding of their ancestral territories. According to the IACtHR, “the right to territory includes the use and enjoyment of the natural resources found in the territory, and is directly tied to, indeed is a prerequisite for, the rights to a dignified existence, food, water, health, and life.”Footnote 70 For this reason, the court indicated that “an indigenous community’s relations to its land and resources are protected by other rights set forth in the American Convention, such as the right to life, honor, and dignity, freedom of conscience and religion, freedom of association, rights of the family, and freedom of movement and residence.”Footnote 71
The ACHR prohibits discrimination of any type, a notion that includes unwarranted distinctions on the basis of race, colour, sex, language, religion, political or other opinions, national or social origin, economic status, birth, or any other social condition.Footnote 72 Concerned that violence against women is an offence against human dignity and a manifestation of historically unequal power relations between women and men, the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women affirms that every woman has the right to the recognition, enjoyment, exercise, and protection of all human rights and freedoms embodied in regional and international human rights instruments, including the rights to have the inherent dignity of her person respected and her family protected.Footnote 73 In the 2006 case of Miguel Castro-Castro Prison v Peru, the IACtHR applied a gender perspective based on this provision for the first time.Footnote 74
In other cases, the IACtHR has indicated that “at the current moment in the development of international law, the fundamental principles of equal protection and non-discrimination have taken on the status of jus cogens.”Footnote 75 The court has also stated that “the notion of equality springs directly from the oneness of the human family and is linked to the essential dignity of the individual, and that principle cannot be reconciled with the notion that a given group has the right to privileged treatment because of its perceived superiority.”Footnote 76 In the 2006 case of Ximenes Lopes v Brazil, the IACtHR indicated that one must take into account the special position of guarantor that the state assumes with respect to persons who are under its custody or care, such as persons institutionalized in mental health centres, to whom the state has the positive obligation of providing the conditions needed to lead a dignified life.Footnote 77 Furthermore, the IACtHR has addressed the concept of a dignified life among the obligations imposed under Article 4 of the ACHR. Thus, in the case of “Street Children” (Villagrán Morales et al) v Guatemala, the court established that “the fundamental right to life includes … also the right … not [to] be prevented from having access to the conditions that guarantee a dignified existence.”Footnote 78 This interpretation was revisited in three cases involving Indigenous communities arguing against Paraguay, for whom the state did not take the necessary measures to provide a dignified life through the provision of health services, among other things.Footnote 79
The principle of human dignity has also been embraced within the African framework for the legal protection of human rights, comprising the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights (ACtHR). For example, in 2003, the commission delivered a communication in Purohit and Moore v Gambia regarding discriminatory features, directed at people with mental illnesses, of Gambia’s Lunatics Detention Act. Footnote 80 In that case, the complainants submitted that there was no clear definition of who could be detained as a person with a disability. The legislation also resorted to discriminatory expressions like “idiot” or “lunatic.” The complainants further submitted that, because of the lack of precise definition of the legislation’s scope, there was overcrowding in the country’s psychiatric units. The commission found the communication admissible and declared, on the merits, that Gambia had violated the African Charter on Human and Peoples’ Rights (African Charter) by imposing discriminatory treatment on people with disabilities.Footnote 81 The commission also considered that Gambia had violated human dignity, which “is an inherent basic right to which all human beings, regardless of their mental capabilities or disabilities as the case may be, are entitled … without discrimination.”Footnote 82
The ACtHR has also observed that respect for human rights as a whole is intended to protect the dignity of the human person. However, as the court has pointed out, the reference to human dignity takes a specific form in the provisions of Article 5 of the African Charter, which prohibits restrictions on human dignity.Footnote 83 Thus, the court shares the commission’s view that Article 5 of the African Charter “can be interpreted as extending the broadest possible protection against abuse, whether physical or mental.”Footnote 84
In the jurisprudence of the United Nations (UN) Human Rights Committee (HRC), respect for human dignity is expressed above all in the protection of physical and mental integrity as well as in the prohibition of torture and slavery. This prohibition protects individuals from humiliation and degradation.Footnote 85 It is also the HRC’s position, stated in General Comment No. 36, that environmental degradation and climate change constitute extremely serious threats to the ability of both present and future generations to enjoy the right to life, and that states should take all appropriate measures to address threats to the right to life as well as conditions, including environmental pollution, that prevent individuals from enjoying their right to life with dignity.Footnote 86 Based on this position, the HRC held that the authors of a communication against Paraguay should be provided with an effective remedy, entailing full reparation for the persons whose rights had been violated. The authors of the communication had alleged that their right to a life with dignity had been violated as a result of the large-scale use of toxic agrochemicals, which had had severe impacts on their living conditions, livelihoods, and health.Footnote 87
A negative approach to human dignity is frequently associated with humiliation and degrading treatment, torture, poverty, and slavery.Footnote 88 Instead of deducing moral principles from an abstract conception of human dignity, such a perspective starts from some act or practice that often is, or can be, characterized as a violation of human dignity: humiliation, degradation, or dehumanization. In order words, instead of attempting to derive a conception of human dignity from normative ethics, proponents of this method choose a negative approach.Footnote 89 Similarly, Egle Venckienė argues that human dignity may be summarized as a negative duty not to treat the human being as an object for the attainment of other needs at the national level. Thus, human dignity must be protected by means of law making, and legal norms may not be interpreted in such a way as to permit the infringement of human dignity. For example, the application of capital punishment, the application of physical punishment, the humiliation of human beings in the course of criminal procedures and places of detention, and the creation of inhuman conditions must be prohibited.Footnote 90
Therefore, international jurisprudence shows that human dignity is more frequently addressed in cases where a person is in a special circumstance of social vulnerability or discriminatory treatment. These circumstances embrace gender, race, sexuality, ethnicity, and disability. They also comprise people deprived of liberty by virtue of judicial punishment. The emphasis on human dignity in these cases is crucial to connecting persons who are living under conditions of social exclusion to the full enjoyment of all dimensions of their human rights since their links to social standards have been weakened by the social conditions in which their exclusion is rooted. The principle of human dignity thus sheds light on the whole of human rights protection and is emphasized in cases of special vulnerability. Resorting to human dignity is important for restoring minimum conditions in which vulnerable persons can be protected by civil, political, social, economic, and cultural rights. Therefore, before pursuing new, more direct human rights protections, the emphasis on human dignity is justified as a way to reconnect persons with civilized standards of existence and, as a consequence, with recognized dimensions of human rights. It is a means of reiterating that, even faced with vulnerability, such persons are as human as other persons and are, by that fact alone, equally worthy.
International Legal Elements of Human Dignity
Considering that dignity is a right and a principle recognized in international legal instruments and can be used as a criterion for interpretation by judicial bodies in order to provide a broader understanding of human rights, that the international legal order aspires to universalization of human dignity, and that the postulate of inherent human dignity is enshrined in the international legal order and is widely accepted by international society, some dynamic and flexible elements can be embedded in the human dignity concept, guiding its interpretation at both the national and international levels. In other words, rather than a mere concept, human dignity can be conceived as a set of elements with many different aspects, as well as a process, rather than having a fixed meaning. Its different aspects should reflect an international perspective and the proliferation of sources in which it is recognized, in line with the plurality that shows (according to Mireille Delmas-Marty, using the cloud metaphor)Footnote 91 an intertwining of norms interacting horizontally in a process of integration and disintegration without hierarchy, either in an approach of a supranational character or through jus cogens human rights norms.
International law, including human dignity, can be understood as a cultural and temporal construct, a system that constantly evolves through time.Footnote 92 Sixty years ago, the concept of a human right to a healthy environment was viewed as a novel, even radical, idea. Today, it is widely recognized in international law and endorsed by an overwhelming proportion of countries.Footnote 93 According to Principle 1 of the Stockholm Declaration, all persons have the fundamental right to freedom, equality, and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and they bear a solemn responsibility to protect and improve the environment for present and future generations. As to whether a healthy environment is essential for the enjoyment of human rights, there is a growing sense that environmental degradation and climate change can negatively impact human dignity.
On 28 July 2022, the UN General Assembly (UNGA) adopted a historic resolution declaring that access to a clean, healthy, and sustainable environment was a universal human right. UNGA Resolution 76/300 represents a universal recognition that the impact of climate change and the unsustainable management and use of natural resources interfere with the enjoyment of a clean, healthy, and sustainable environment and that environmental damage has negative implications, both direct and indirect, for the effective enjoyment of all human rights. The resolution recognizes that sustainable development and the protection of the environment, including ecosystems, contribute to and promote human well-being and the full enjoyment of all human rights for present and future generations.Footnote 94 Considering that all human beings depend on the environment in which they live, a safe, clean, healthy, and sustainable environment is a common principle. Without a healthy environment, human beings are unable to fulfill their aspirations, and they may not have access to even minimum standards of human dignity. Based on the assumption that all human beings are part of the same planet and are all interconnected and belong to the same human species, all individuals are of equal value and, therefore, deserve equal respect and concern. Human dignity recognizes and reflects the equal worth of each and every member of the human family. Human dignity does not mean the superiority of the human species over other species of animals, but it is related to the idea that, within the human family, all of its members are of equal value.
Even though human dignity becomes a value underlying different ways of life, as societies develop their own conceptions about how humans should relate to one another,Footnote 95 international society has recognized its universality through norms of international law widely accepted by states. Dignity is a universal principle because everyone is born with, and possesses, the same rights, regardless of where they live, their gender or race, or their religious, national, cultural, or ethnic background. During a lecture entitled “Do We Still Have Universal Values?” delivered at Tübingen University in 2003, then UN Secretary-General Kofi Annan affirmed that “our universal values require us to recognize the human characteristics, both good and bad, that we have in common with all our fellow human beings, and to show the same respect for human dignity and sensitivity in people of other communities that we expect them to show for ours.”Footnote 96 He stressed that “the function of universal values is not to eliminate all differences, but rather to help us manage them with mutual respect, and without resorting to mutual destruction,” and he concluded that “values are not there to serve philosophers or theologians, but to help people live their lives and organize their societies. So, at the international level, we need mechanisms of cooperation strong enough to insist on universal values, but flexible enough to help people realize those values in ways that they can actually apply in their specific circumstances.”Footnote 97
As a universal value, human dignity involves promotion by, and the responsibility of, all society. State responsibility is an old general principle of international law, and, historically, states hold primary responsibility to respect human rights, respond to them when violated, protect against violations by third parties, and create an environment where all rights are respected.Footnote 98 Based on the assumption that human dignity is a universal value, and that international law establishes that state responsibility for its violations is limited by territoriality as well as by citizenship, the promotion and protection of human dignity can result in a paradox. Each state is responsible for human rights violations occurring in its own territory. In contrast, state responsibilities with regard to the human rights of citizens of other states are vague and weak.Footnote 99 Jürgen Habermas has stressed that, despite its abstract meaning, human dignity still retains from its particularistic precursor concepts the connotation of depending on the social recognition of status — in this case, the status of democratic citizenship. According to this conception, only membership in a constitutional political community can protect, by granting equal rights, the equal human dignity of every person.Footnote 100 From a cosmopolitan perspective, however, the individual human being is the ultimate unit of worth and is entitled to equal consideration regardless of nationality and citizenship.Footnote 101 Respect for the right to dignity may be demanded from a democratic state and legal community by every human being on the grounds of his or her existence, without any preliminary conditions and without differentiation related to citizenship or any other aspect.Footnote 102
The debate on migration might be addressed based on human dignity and the idea that international standards of human rights must be implemented in order to successfully and morally address migration questions. International law on human rights establishes unequivocally that migrants and members of their families are first and foremost human beings, the holders of universal human rights whose dignity and security require specific protection.Footnote 103 Consequently, they enjoy the protection of international human rights law like anyone else, even if they are in an irregular situation, as can be the case with some migrants.Footnote 104 The dignity of the person cannot be respected and protected if there is no recognition of fundamental rights and freedoms that apply equally to all people, irrespective of their gender, economic status, or nationality.Footnote 105 The UN Report on the Human Rights of Migrants at Europe’s Borders recommended, for states visited by the Office of the High Commissioner for Human Rights as well as EU institutions, “norm-based and practical guidance on ensuring human rights-based migration and asylum governance measures under the premise that respecting, promoting, and protecting the human rights of all migrants, regardless of their nationality, migration status or other circumstances, facilitates effective migration governance.”Footnote 106
The notion of universal value also engages the debate on private sector responsibility for human rights, an issue that has arisen more frequently in contemporary human rights discourse. In an era of globalization, state action alone is not sufficient to guarantee the enjoyment of human rights and human dignity. For instance, access to essential medicines is not only dependent on the policies and actions of the state but also on the decisions and policies of pharmaceutical corporations.Footnote 107 In June 2011, the HRC endorsed the Guiding Principles on Business and Human Rights and emphasized that the guiding principles are grounded in recognition of (1) states’ existing obligations to respect, protect, and fulfill human rights and fundamental freedoms; (2) the role of business enterprises, as specialized organs of society performing specialized functions, required to comply with all applicable laws and to respect human rights; and (3) the need for rights and obligations to be matched to appropriate and effective remedies when breached.Footnote 108 One year later, the HRC launched an interpretative Guide on Corporate Responsibility to Respect Human Rights. Footnote 109 According to the guide, the idea of human rights is as simple as it is powerful: that people have a right to be treated with dignity. The guide recognizes that human rights are inherent in all human beings, whatever their nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or other status. Therefore, the responsibility to respect human rights applies in all contexts. It is a uniform standard, reflecting its roots in the universal expectation that enterprises should not harm the dignity of people as they go about their business.
Thus, at the international level, especially through international legal instruments that are widely recognized and accepted by states, human dignity currently involves dynamic and flexible elements that guide its interpretation and scope of applicability. Considered as a cultural and temporal construct, the vagueness of human dignity permits its amplification and updating, preventing a static concept composed of one or a few elements. Whereas a right to a healthy environment or corporate social responsibility under international law was unimaginable sixty years ago, today, new elements can be identified to correspond to new forms of dignity. Thus, at the international level, human dignity can be interpreted as (1) universal, regardless of race, colour, age, disability, gender, familial status, religion, sexual orientation, gender identity, genetic information, language, religion, nationality, ethnic or social origin, political belief, citizenship, or any other status or condition in life; (2) inherent, within every person, such that all individuals are of equal value and, therefore, deserving of equal respect and concern; and (3) a sustainable and community value, pursuant to which states have the duty to protect human dignity and corporations have the responsibility to respect and promote human dignity in a sustainable society.
The elements of human dignity as a right (the existential minimum) are applicable, especially at the national level, within constitutional orders and currently engage a range of rights related to (1) environmental dignity, such as the right to live in a healthy environment protected from the impacts of climate change or the right to access to clean water; (2) physical dignity, such as life, freedom of movement, sexual liberty, the prohibition of torture and slave labour, the protection of prisoners from cruel and unusual punishment, and a dignified death; and (3) moral dignity, including rights to culture, language, education, health, pension, proper sanitary systems, privacy, housing, work, due process of law, universal suffrage, freedom of assembly, freedom of religion, freedom of speech, sexual and gender identity, and access to justice, among other fundamental rights.
Conclusion
The idea of human dignity may come to be consolidated in the collective consciousness of human beings, helping them guard against a retreat to barbarity. The articulation of the significance of dignity is a manifestation of its fundamental importance, in that the impact of the idea of dignity would be considerably diminished if we failed to reach a consensus on its significance or unilaterally expanded or narrowed the sphere of its applicability.Footnote 110 The idea of inherence is a tool for the universalization of the human dignity concept, even if we must focus on its minimum content in order to preserve its adaptability to different cultures. Thus, the assumption that human dignity is to be regarded as an intrinsic condition of human beings does not exclude the premise that rights are a societal and historical phenomenon. It means that part of the principle’s postulate is that dignity shall be extended to all human beings in the current international order. Therefore, it is an extrinsic attribution extended to all human beings by resorting to the idea of an intrinsic value.
The lack of a unique and static definition, further, is a tool for permitting the concept to evolve over time, as a way of embracing emerging situations with which human beings may be faced. Social complexity is a hallmark of modern human existence, and, consequently, sectoral social groups with particular vulnerabilities or specific needs can rapidly appear. Not being confined by a closed definition, the principle of human dignity is able to influence legal responses to new social facts. As we have stated above, vagueness can allow human dignity to be the first liquid to fill a recently discovered receptacle. Human dignity’s definition is not static because the situations demanding its application are not static. And if it is supposed to govern complex and dynamic social conditions, human dignity has to be dynamic as well. However, vagueness does not mean that the concept cannot be delineated by observing its general application at a certain time or in a specific circumstance. In fact, finding that the concept is impossible to define would be to render human dignity meaningless. We do not agree that this is the objective of vagueness or its consequence.
As has been demonstrated, human dignity inspires human rights instruments governing different human conditions in society. It covers civil, political, social, economic, and cultural rights, regarding those aspects of social life that are founded in human dignity. At this point, we can consider that human dignity is a value that entitles a person to enjoy life and liberty, that imposes restrictions on a state’s ability legitimately to deprive persons of their liberty by way of punishment and, if it is to do so, that compels it to treat them in accordance with minimum human necessities. It also guarantees human participation in political life, through which opinion shall be free and protected. International legal instruments further consider social and economic rights to be elements of human dignity, in the sense that human persons shall enjoy fair, favourable, secure, and healthy — as well as non-discriminatory — labour conditions in order to earn remuneration that is sufficient to meet their economic needs.
Having consolidated these rights in the international legal order, tribunals do not always explicitly resort to the concept of human dignity, since there are more direct ways of approaching their decisions. Regardless, human dignity has been indirectly applied whenever these rights are enforced. Basically, human dignity compels society to deliver to all human persons the conditions needed for their subsistence, including material human needs. By virtue of highlighting human dignity, all human beings shall be fully integrated into society. Additionally, as has been shown, human dignity’s meaning is strongly connected to the protection of social minorities, as exemplified in international legal instruments that aim to eliminate racial discrimination and discrimination against women, to establish the rights of persons with disabilities, and to protect migrant workers and ethnic minorities. The international jurisprudence canvassed above is further evidence of this tendency since judicial decisions on the rights of minorities frequently resort to the concept of human dignity.
When members of social minorities find themselves in precarious conditions because of oppressive factors rooted in social structures and realities, human dignity — of the same standard enjoyed by those individuals who are not part of socially disadvantaged groups — must be emphasized. Therefore, human dignity has a prohibitive content directed against discriminatory measures based on gender, sexuality, race, ethnicity, or disability, and it also obliges the state to take positive and effective measures to reverse discriminatory social frameworks. The precariousness of the social realities of minorities justifies an approach that stresses human dignity, which is the reason why most of human dignity’s content is connected to the idea of inherence — that is, the postulate that dignity shall be enjoyed by all, independently of gender, race, and so on. The independence of human dignity and one’s particular social position is contained in the idea of inherence, but the need to focus the concept on the protection of social minorities is so manifest that many scholars find it necessary to highlight this application of the concept. Clearly, its stronger presence in these cases does not mean that its application is restricted to those groups. It simply means that there are social circumstances where an emphasis on human dignity is crucial because of the higher levels of vulnerability of certain groups.
Other evidence of human dignity’s strong impact is the emphasis given to its enjoyment by detainees. Detention is a very special social condition where a person is deprived of liberty. Human dignity prohibits detention that causes disproportionate suffering beyond the deprivation of liberty itself. In this sense, human dignity compels states to provide proper treatment that has regard for the quality of a detainee’s subsistence, particularly with respect to access to food and health care. This category of rights regarding conditions of detention is in addition to the classic civil and political rights governing the circumstances under which a person can be found guilty of an offence and incarcerated.
Therefore, it can be seen that, although it is impossible to find an absolute and immutable definition for human dignity, since it is constantly being adapted to new circumstances, it is not correct to conclude that its meaning is impossible to determine at a particular time or in a particular case. Human dignity has been providing concrete answers to emerging human rights concerns within the international legal order with a view to placing every person, independently of their particular social position, in a position to fully enjoy their human rights. Its openness is explained by the function that it plays in the legal system. It serves as a legal goal with a meaning that needs to be pursued in each case. As a principle — perhaps a macro principle — it is open by nature, with sufficient flexibility to be adapted. As a legal purpose, human dignity’s intent is to direct every circumstance towards realizing the whole of human rights. In this way, it is possible to affirm that human dignity embraces the whole of human rights development. Its meaning, however, cannot be regarded simply as a sum of the various human rights pieces since “the whole is more than the sum of the parts” of most systems. Human dignity, being more than the sum of its parts, provides the whole of international human rights law with a dynamic, purposeful substance. Its openness and its receptiveness to new elements furnish the whole of human rights with a special character that corresponds to its adaptable and evolutionary nature.
