The Right to Dignity Rex D. Glensy - Columbia Law School

More documents

Recommendations

Info

102 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 dignity is one possibility that could be normatively desirable and jurisprudentially possible in the United States. 175 3. International Law Much of international law today began to take shape in the shadow of World War II and thus reflects an ethos similar to that which shaped modern Germany. Thus, many multilateral treaties, declarations, proclamations, and agreements promulgated in the late 1940s and thereafter promote the centrality of human dignity as a paramount value shared by all societies in the world. The reason for this centrality is that “it became necessary to defend, not merely some rights, some truths, or some moral principles, but the very existence of human rights, truth, and of morality.” 176 The protection of human dignity, therefore, became something that could be promoted because it encapsulated a common principle that was sufficiently vague for each country to see in it a value worthy of global focus. 177 It is therefore no coincidence that the Preamble of the founding charter of the United Nations affirms that “the peoples of the United Nations” have “faith in fundamental human rights” that include, among others, “the dignity and worth of the human person.” 178 Similarly, the Universal Declaration of Human Rights (“UDHR”), an aspirational document passed by the U.N. General Assembly, mentions the right to dignity in several places. First, the Preamble takes note of the statement pertaining to human dignity contained in the U.N. Charter Preamble, and goes on to state that the 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.” 179 Several articles add contours to this notion: Article 1 states that “[a]ll human beings are born free and equal in dignity and rights” and, as such, “are endowed 175. Some have expressed skepticism that such legal transplants are possible or desirable. See, e.g., Robert Leckey, Thick Instrumentalism and Comparative Constitutionalism: The Case of Gay Rights, 40 Colum. Hum. Rts. L. Rev. 425, 455 (2009) (stating that in Canada, the prohibition against samesex marriage was deemed a violation of human dignity but questioning whether “the conception of dignity and its place in constitutional discourse [is] the same in Canada and the United States”). 176. Kevin J. Hasson, Religious Liberty and Human Dignity: A Tale of Two Declarations, 27 Harv. J.L. & Pub. Pol’y 81, 82 (2003). 177. See Maritain, supra note 70, at 78–79. 178. U.N. Charter pmbl. 179. UDHR, supra note 70.
2011] The Right to Dignity 103 with reason and conscience and should act towards one another in a spirit of brotherhood”; Article 22 provides that “[e]veryone . . . has the right to social security and is entitled to realization . . . of the economic, social and cultural rights indispensable for his dignity and the free development of his personality”; and Article 23(3) specifies that “[e]veryone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity.” 180 In combination, the U.N. Charter and the UDHR make a clear statement about the declaratory significance of establishing the right to dignity as the ultimate value to be enshrined in the foundational documents of a modern society. While it is true that the contours of this right are left somewhat undefined (although not as shapeless as some would have it), the recognition of dignity makes these documents cohere and provides an internal tuning key to which all the other rights would have to be harmonized. 181 These prominent placements of human dignity within the UDHR are of great significance. Even though the UDHR carried no binding effect at its inception, over time, its precepts led to a crystallized consensus of state practice and thus created a binding norm of customary international law. 182 Moreover, the import of dignity within the UDHR is very broad and advises the creation of both negative rights based on the right to dignity (that would prohibit the state from violating this right) and positive rights (that would mandate state enforcement of these rights and also grant a private right of action). 183 Other international and regional agreements reflect these overarching ideals present in both the U.N. Charter and the UDHR. The International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination, all have provisions that hearken back to the 180. Id. at 72, 75. 181. See Mary Ann Glendon, Reflections on the UDHR, 82 First Things 23, 24 (1998); see also Hyman, supra note 1, at 13 (noting that “[h]uman dignity is an abstract concept, but policy decisions are necessarily concrete,” and doubting that those tasked with “actually us[ing] human dignity as a decision rule” actually want or have the expertise to do so). 182. See Johann van Aggelen, The Preamble of the United Nations Declaration of Human Rights, 28 Denv. J. Int’l L. & Pol’y 129, 143 (2000). 183. See, e.g., UDHR, supra note 70, arts. 9–11 (creating negative rights pertaining to the protection against arbitrary arrest) and arts. 22–26 (creating positive rights, such as the right to social security, the right to work in safe conditions, and the right to education).
Page 1 and 2: THE RIGHT TO DIGNITY REX D. GLENSY
Page 3 and 4: 2011] The Right to Dignity 67 Never
Page 5 and 6: 2011] The Right to Dignity 69 . . .
Page 7 and 8: 2011] The Right to Dignity 71 right
Page 9 and 10: 2011] The Right to Dignity 73 the
Page 11 and 12: 2011] The Right to Dignity 75 witho
Page 13 and 14: 2011] The Right to Dignity 77 that
Page 15 and 16: 2011] The Right to Dignity 79 Jacqu
Page 17 and 18: 2011] The Right to Dignity 81 root,
Page 19 and 20: 2011] The Right to Dignity 83 On th
Page 21 and 22: 2011] The Right to Dignity 85 B. Le
Page 23 and 24: 2011] The Right to Dignity 87 milit
Page 25 and 26: 2011] The Right to Dignity 89 enunc
Page 27 and 28: 2011] The Right to Dignity 91 noted
Page 29 and 30: 2011] The Right to Dignity 93 errat
Page 31 and 32: 2011] The Right to Dignity 95 basic
Page 33 and 34: 2011] The Right to Dignity 97 there
Page 35 and 36: 2011] The Right to Dignity 99 and n
Page 37: 2011] The Right to Dignity 101 much
Page 41 and 42: 2011] The Right to Dignity 105 bodi
Page 43 and 44: 2011] The Right to Dignity 107 acce
Page 45 and 46: 2011] The Right to Dignity 109 fund
Page 47 and 48: 2011] The Right to Dignity 111 wish
Page 49 and 50: 2011] The Right to Dignity 113 exis
Page 51 and 52: 2011] The Right to Dignity 115 Stat
Page 53 and 54: 2011] The Right to Dignity 117 Libe
Page 55 and 56: 2011] The Right to Dignity 119 embo
Page 57 and 58: 2011] The Right to Dignity 121 inte
Page 59 and 60: 2011] The Right to Dignity 123 a
Page 61 and 62: 2011] The Right to Dignity 125 Firs
Page 63 and 64: 2011] The Right to Dignity 127 prob
Page 65 and 66: 2011] The Right to Dignity 129 shou
Page 67 and 68: 2011] The Right to Dignity 131 the
Page 69 and 70: 2011] The Right to Dignity 133 Whil
Page 71 and 72: 2011] The Right to Dignity 135 on w
Page 73 and 74: 2011] The Right to Dignity 137 Whil
Page 75 and 76: 2011] The Right to Dignity 139 enco
Page 77 and 78: 2011] The Right to Dignity 141 IV.

The Right to Dignity Rex D. Glensy - Columbia Law School

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?