By Hong Yi
Abstract: Prevalent in international conventions and declarations, national constitutions and judicial discourse, the term ‘dignity’ has served as a pre-eminent fundamental concept from which human rights law has been advanced and interpreted. [1] While the advancement of human rights should be welcomed by all, the universality of the use and meaning of dignity has been highly contested. [2] The controversy surrounding dignity lies in the multiple possible valences that run the risk of manipulation. The rule of law requires decisions to be open, clear and accessible. [3] If dignity is exposed as vacuous, then the resulting idiosyncratic and arbitrary decision-making will obstruct the universal circulation of human rights norms.
This paper will first assess the role of dignity in the development of international human rights instruments. Next, the application and transnational effect of dignity as a unifying principle will be assessed against its divergent interpretations. In analyzing these applications, I will argue that dignity in itself is not normative nor farcical, but expressive. Neither does it contravene the rule of law, but rather, it strengthens and legitimizes human rights law.
I. Dignity’s role in developing international human rights instruments
Prior to the UN Charter, there were minimal references to dignity being scattered across international human rights law texts. [4] Shortly after World War Two, efforts to enact stronger safeguards for fundamental rights led to the Universal Declaration of Human Rights (UDHR) [5] of 1948, together with the accompanying covenants of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both in 1966.
UDHR
The Preamble to these three instruments read: ‘Recognition of the inherent dignity of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. [6] Further references to dignity can be found within the UDHR Articles and subsequent international human rights treaties. [7] On further inspection of the UDHR where dignity has been referenced, Article 22 (concerning economic, social and cultural rights being indispensable for dignity) [8] and Article 23 (concerning the right to just and favourable remuneration to ensure an existence worthy of human dignity) [9] appear to set out a minimum core of dignity as a concept: that every human being has inherent dignity, providing the basis for the possession of fundamental human rights that are inalienable and equal. [10]
Universal Declaration on Bioethics and Human Rights (UDBHR)
However, subsequent declarations like the Universal Declaration on Bioethics and Human Rights (UDBHR) in 2005 go further than setting out the significance of dignity being an inherent quality. [11] Articles 12 to 17 espouse mutual social responsibilities with Article 12 highlighting the ‘importance of cultural diversity and pluralism’ in so far as such differences are not ‘invoked to infringe upon human dignity’. [12] A critical interpretation of this declaration may lead one to reasonably infer that the pursuit of bioethics advancements are constrained to the extent of respecting human rights.
UN Declaration on Human Cloning
Where international jurisprudence allows for the development of dignity in human rights law, greater fault lines are observed. Tensions between legitimate biotechnological advancements and human rights serve as just one example. The UN Declaration on Human Cloning purports to cover all forms of human cloning while affording members the leeway to determine if therapeutic cloning is compatible with human dignity. [13]
Dignity giving content and legitimacy to human rights law
The examples above illustrate a sequential development of dignity’s increasing role in international human rights instruments. Where the UDHR first provided that dignity is inherent in every human being thereby possessing inalienable fundamental and equal human rights, the UDBR goes further in utilizing dignity to limit actions in specific contexts where dignity may be infringed. Finally, the UN Declaration on Human Cloning seems to almost empower member states to determine the perimeters where dignity is respected or violated.
There is no doubt that the exponential increase in human rights instruments goes to the central function of improving human rights generally, by giving content to human rights law. However, it is these developments that have given rise to multiple valences where dignity is referenced and manipulated. [14] McCrudden even goes so far as to claim that the gap between the minimum core of dignity and actual application of dignity results in a superficial, illegitimate claim of universality that shields indeterminacy and manipulation. [15] If such a scathing assessment cannot be sustained, McCrudden argues that beyond a uniform acceptance of dignity as a concept, there is no common substantive conception of dignity such as to develop a consensus on the implications of infringements on dignity. [16] McCrudden then argues that this lack of consensus threatens the legitimacy of human rights law. The next part of this paper will assess the convergent and divergent applications of dignity to determine the role of dignity in giving legitimacy to human rights law.
II. Is there a normative conception of dignity?
Convergent applications
Increasing references to dignity in international human rights instruments have consequently led to corresponding increases of dignity being referenced to other particular values in domestic rights discourse. [17] In the death penalty context where the particular value in contention is the right to life and prohibition of inhumane treatment, Brennan J of the U.S Supreme Court in Furman v Georgia held that inhumane punishment is cruel and inconsistent with respecting human dignity. [18] The Canadian Supreme Court in Kindler v Canada similarly held that the death penalty is ‘the ultimate desecration of human dignity’ and cannot be justified except in exceptional circumstances. [19] Similarly, the Hungarian Constitutional Court and South African Constitutional Court ruled that the death penalty was unconstitutional by reference to the violations of human dignity and right to life. [20]
The assertion of dignity being a normative concept is further supported by the transnational circulation of human rights norms. The South African Constitutional Court in Makwanyane borrowed heavily from German and Israeli decisions [21] while the US Supreme Court in Roper v Simmons relied on foreign material in ruling the death penalty as unconstitutional. [22]
Through these decisions in the specific context of the death penalty, Carozza asserts that the increasing willingness of courts to draw upon foreign approaches to the value of human dignity marks a ‘common enterprise’ of working out the practical implications of human dignity in differing contexts. [23] If so, then it appears that at the minimum core, dignity is normative. Content and legitimacy of human rights law are also advanced further through comparative exchanges across jurisdictions.
Divergent applications
However, courts may be similarly prone to adopting divergent applications of dignity. For example, despite Hungary and Germany having largely similar constitutional provisions relating to the right to life and human dignity, the Hungarian position places an individualistic focus on human dignity while a communitarian focus can be observed from the German position. [24] In the context of abortion, the German Constitutional Court held that dignity can be present in developing life, thereby limiting abortion in certain contexts. [25] In contrast, the Hungarian Constitutional Court held that the role of dignity in prohibiting abortion depended on Parliament recognizing the foetus as a human being. [26]
The concept of dignity in itself may also be accorded different weight by different jurisdictions. Where certain actions are prohibited on the basis of violating human dignity, consent may be insufficient to lift such prohibitions. For example, the French dwarf-throwing case, [27] German peep-show decision [28] and omega case [29] all share a common theme of participants’ free consent being held insufficient to outweigh the violation of human dignity. Contrastingly, consent has been successfully used in lifting such prohibitions, as in the case of Lawrence v Texas, where restrictions on sexual freedom were held to be violating human dignity. [30]
III. Dignity’s role in human rights law
At this stage, it is clear that a large gap exists between the universal idea of dignity at its minimum core and the application of interpreting human rights in line with dignity. [31] While McCrudden argues that such divergent applications hide behind the shroud of universality, thereby endangering the legitimacy of human rights law, Carozza argues that such divergent applications are a mere byproduct of a ‘common enterprise’ model that acknowledges the minimum core of dignity while allowing different jurisdictions to operate in a jus communes fashion by implementing dignity in their respective contexts. Where McCrudden views such divergent applications of dignity as destabilizing the content and legitimacy of human rights law, Carozza views it as a necessary occasion to promote content and legitimacy of human rights law. [32]
It is therefore clear that dignity cannot be taken as normative beyond the minimum core. In fact, the Canadian Supreme Court stated that ‘human dignity is an abstract and subjective notion’ which subjects equality claimants to additional burdens. [33] However, this does not necessarily mean that dignity cannot give, nor continue to give, content and legitimacy to human rights law. It is in fact this malleability of the concept that allows the content and legitimacy of human rights law to flourish.
Dignity gives content and legitimacy to human rights law by being expressive, not normative
Where outcomes of decisions converge or diverge, a better view is not to accept dignity as being normative or relative, liberating or constraining. Rather, dignity is all of these characterisations. Dignity’s mode of operation is constant and determines how norms are created. The flexibility of dignity allows it to adopt an expressive character in the sense discussed, which is distinct from other non-expressive values such as autonomy and equality. [34] The First and Second Abortion Cases illustrate this perfectly. [35] Dignity is acknowledged as being inherent in the mother’s right to personality and foetus’ right to life. However, as the issue in question relates to abortion, an expressivist operation of dignity arises to assess the extent to which dignity is being violated in the context of abortion. [36]
After all, Maritain and Shultziner note that the UDHR and other similar international human rights instruments were deliberately drafted with generality such as to achieve a uniform consensus on the minimum core of dignity, while stopping short on agreeing the reasons behind such prohibitions. [37]
The jus commune framework by Carozza attributes the generality of dignity to the increasing transnational circulation of human rights norms, but fails to substantively articulate what the inherent dignity in every human being is worth and the implications that follow. On the other hand, McCrudden’s labeling of dignity as a vacuous concept seems overly critical in failing to accept that particular rights concepts such as autonomy and equality may have more than one defensible conception. For example, affirmative action may be viewed as being equality-promoting and equality-denying at the same time. [38]
When dignity is instead viewed as being expressive, the tensions between Carozza’s and McCrudden’s assertions are reconciled. The value in understanding dignity as an expressive norm lies in the focus it places on meanings. It presupposes that actions convey meanings that are determined objectively and that such meanings are independent of their consequences. [39]
IV. Conclusion
The multiple possible valences of dignity that McCrudden warned against are not indefensible, especially when analysed in individual cases. The issue lies in the fact that judges have often failed to even recognise the multiple valences of dignity which may often be in contention alongside other competing rights. [40] However, in viewing dignity as expressive like in the Second Abortion Decision, the Court was able to accord dignity both to the mother’s right to personality and foetus right to life which then utilised dignity as a common metric in balancing conflicting commensurate rights. In this conception, an acknowledgement of dignity’s operation in conjunction with other rights provides a sound judicial basis for prohibiting abortion, therefore complying with the rule of law and giving content and legitimacy to human rights law. As developments in human rights laws are backed by increasing content and legitimacy, the tension of regulating state and individual interests can be more effectively managed by articulating the expressive nature of dignity and applying such understanding accordingly.
Footnotes
[1] Paolo G. Carozza, ‘Human Dignity and Judicial Interpretation of Human Rights: A Reply’ (2008) 19(5) European Journal of International Law 931, 932.
[2] Christopher McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19(4) European Journal of International Law 655, 677-80.
[3] Joseph Raz, The Authority of Law: Essays on Law and Morality (Clarendon Press, 1979) 212-9.
[4] Adam McBeth, Justine Nolan and Simon Rice, The International Law of Human Rights (Oxford University Press, 2nd ed, 2017) 132.
[5] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948).
[6] Ibid Preamble para 1.
[7] McCrudden (n 2) 667.
[8] Universal Declaration of Human Rights (n 5) art 22.
[9] Ibid art 23.
[10] Ibid Preamble para 1.
[11] UNESCO, Universal Declaration on Bioethics and Human Rights (2005).
[12] Ibid art 12.
[13] United Nations Declaration on Human Cloning, GA/10333 (8 March 2005).
[14] Carozza (n 1) 932.
[15] McCrudden (n 2) 710.
[16] Ibid 724.
[17] Gay Moon and Robin Allen, ‘Dignity Discourse in Discrimination Law: A Better Route to Equality’ (2006) 6 European Human Rights Law Review 610, 626.
[18] 408 US 238 (1972).
[19] [1991] 2 SCR 779.
[20] McCrudden (n 2) 688; State v Makwanyane and Mchunu (1995) 6 BCLR 665.
[21] Ibid.
[22] 543 US 551, 1198 (2005).
[23] Paolo G. Carozza, ‘My Friend is a Stranger: The Death Penalty and the Global Jus Commune of Human Rights’ (2003) 81 Texas Law Review 1031, 1081-2.
[24] Catherine Dupré, Importing the Law in Post-Communist Traditions: The Hungarian Constitutional Court and the Right to Human Dignity (Hart Publishing, 2003), 108, 111, 122.
[25] First Abortion Decision, 39 BverfGE R 1 (1975); Second Abortion Decision: BverGE 88, 208 (1993).
[26] Dupré (n 24) 116.
[27] Conseil d’Etat [French Administrative Court], 27 October 1995 reported in req. Nos 136 – 720 (Commune de Morsang-sur-Orge), and 143 – 578 (Ville d’Aix-en-Provence).
[28] Bundesverfassungsgericht [German Constitutional Court] BverfGE 64, 274-80.
[29] Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberburgermeisterin der Bundesstadt Bonn (Case C-36/02) (14 October 2004).
[30] 539 US 558, 2484 (2003).
[31] Roger Brownwood, ‘Human Dignity from a Legal Perspective’ in Marcus Duwell, Roger Brownswood, Jens Braarvig and Dietmar Mieth, The Cambridge Handbook on Human Dignity: Interdisciplinary Perspectives (Cambridge University Press, 2014) 6-7.
[32] Carozza (n 1) 944.
[33] R v Kapp (2008) 2 SCR 483, para 22-3.
[34] Tarunabh Khaitan, ‘Dignity as an Expressive Norm: Neither Vacuous nor a Panacea’ (2012) 32(1) Oxford Journal of Legal Studies 1, 5.
[35] First Abortion Decision; Second Abortion Decision (n 25).
[36] Second Abortion Decision (n 25) 164.
[37] McCrudden (n 2) 678.
[38] Khaitan (n 34) 14.
[39] Ibid 19.
[40] Ibid 14.
Bibliography
A. Articles/Books/Reports
Carozza, Paolo G, ‘Human Dignity and Judicial Interpretation of Human Rights: A Reply’ (2008) 19(5) European Journal of International Law 931
Carozza, Paolo G, ‘My Friend is a Stranger: The Death Penalty and the Global Jus Commune of Human Rights’ (2003) 81 Texas Law Review 1031
Dupré, Catherine, Importing the Law in Post-Communist Traditions: The Hungarian Constitutional Court and the Right to Human Dignity (Hart Publishing, 2003)
Duwell, Marcus, Roger Brownswood, Jens Braarvig and Dietmar Mieth, The Cambridge Handbook on Human Dignity: Interdisciplinary Perspectives (Cambridge University Press, 2014)
Khaitan, Tarunabh, ‘Dignity as an Expressive Norm: Neither Vacuous nor a Panacea’ (2012) 32(1) Oxford Journal of Legal Studies 1
McBeth, Adam, Justine Nolan and Simon Rice, The International Law of Human Rights (Oxford University Press, 2nd ed, 2017)
McCrudden, Christopher, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19(4) European Journal of International Law 655
Moon, Gay and Robin Allen, ‘Dignity Discourse in Discrimination Law: A Better Route to Equality’ (2006) 6 European Human Rights Law Review 610
Raz, Joseph, The Authority of Law: Essays on Law and Morality (Clarendon Press, 1979)
B. Cases
Bundesverfassungsgericht [German Constitutional Court] BverfGE 64
Conseil d’Etat [French Administrative Court], 27 October 1995 reported in req. Nos 136 – 720 (Commune de Morsang-sur-Orge), and 143 – 578 (Ville d’Aix-en-Provence)
First Abortion Decision, 39 BverfGE R 1 (1975)
Furman v Georgia 408 US 238 (1972)
Kindler v Canada [1991] 2 SCR 779
Lawrence v Texas 539 US 558 (2003)
Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberburgermeisterin der Bundesstadt Bonn (Case C-36/02) (14 October 2004)
R v Kapp (2008) 2 SCR 483
Roper v Simmons 543 US 551 (2005)
Second Abortion Decision: BverGE 88, 208 (1993)
State v Makwanyane and Mchunu (1995) 6 BCLR 665
C. Legislation
D. Treaties
UNESCO, Universal Declaration on Bioethics and Human Rights (2005)
United Nations Declaration on Human Cloning, GA/10333 (8 March 2005)
Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948)
E. Other
Hong Yi is currently training as a solicitor with a view to being called to the Singapore Bar. While he is currently training in banking and finance/M&A, he retains a keen interest in international human rights law. With a desire to make meaningful changes within his capacity, his interest in international human rights has led him to work with the Anti-Death Penalty Clinic at Eleos Justice and the World Coalition against the Death Penalty. Separately, Hong Yi currently volunteers his spare time outside of his training to provide legal assistance to refugee seekers of the Afghan refugee crisis.