Human dignity and judicial interpretation of human rights: A reply

European Journal of International Law

Volumn 19, Issue 5, 2008, Pages 931-944

  Carozza, Paolo G ^a  

^a NOTRE DAME LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 58149385581     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chn059     Document Type: Note

References (50)

1. St Vincent Millay, 'Aria da Capo', in Selected Poems(ed. J.D. McClatchy, 2003), at 75.
2. 19 EJIL (2008) 655.
3. Carozza, '"My Friend is a Stranger": The Death Penalty and the Global Ius Commune of Human Rights', 81 Texas L Rev (2003) 1031.
4. See, e.g., Preamble, Universal Declaration of Human Rights (1948).
5. See, e.g., Articles 8-11 ECHR.
6. See Y. Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (2002).
7. See Carozza, 'Subsidiarity as a Structural Principle of International Human Rights Law', 97 AJIL (2003) 38.
8. See Carozza, 'The Universal Common Good and the Authority of International Law', 8 Logos: A Journal Of Catholic Thought And Culture (2006) 28.
9. Much of the problem which McCrudden grapples with, in fact, can be understood as arising merely out of the fact that fundamental rights operate as principles, not rules, a distinction which Dworkin elaborated decades ago: R. Dworkin, Taking Rights Seriously (1978), at 23-28, 71-80. Robert Alexy has explained more recently and more thoroughly many of the implications of understanding fundamental rights as principles, including the need for optimization: See generally R. Alexy, A Theory of Constitutional Rights (2002).
10. One additional important example to add to the many cited by McCrudden is the Universal Declaration of Bioethics and Human Rights, which provides that '[n]othing in this Declaration may be interpreted as implying for any State, group or person any claim to engage in any activity or to perform any act contrary to human rights, fundamental freedoms and human dignity'. In drafting that instrument the UNESCO Secretariat began the process by sending out a questionnaire asking participating states, among other things, which principles were most important to include in the draft declaration. 'Human dignity' was the only one to get 100% support: Snead, 'Assessing the Universal Declaration on Bioethics and Human Rights', 7 National Catholic Bioethics Quarterly(2007) 53, at 57-58.
11. Carozza, supra note 3. The general conclusions about judicial discourse which are summarized in the following few paragraphs are drawn from the more detailed collection and analysis of judicial decisions in that article.
12. Neuman, 'Human Rights and Constitutional Rights: Harmony and Dissonance', 55 Stanford L Rev (2003) 1863.
13. See Tushnet, 'The Possibilities of Comparative Constitutional Law', 108 Yale LJ (1999) 1225, at 1231-1239 (arguing that comparative analyses constitute cogent legal arguments only when they address constitutional provisions for which the court has 'licensed' a policy accepting comparative arguments).
14. Carozza, supra note 3, at 1082-1084.
15. Ibid., at 1043.
16. On the meaning and workings of determinatio see J. Finnis, Natural Law and Natural Rights (1980), at 281-290
17. George, 'Natural Law and International Order', in D. Mapel and T. Nardin (eds), International Society (1998), at 54, 62-64.
18. Carozza, supra note 3, at 1082.
19. Ibid., at 1043.
20. Contrary to what McCrudden claims to be the aim of my comparative analysis. McCrudden, supra note 2, at 696.
21. Carozza, supra note 3, at 1085.
22. See more generally Carozza, supra note 7.
23. McCrudden, supra note 2, at 719, quoting Carozza, supra note 7, at 38.
24. I am indebted to John Finnis for helping me to clarify and articulate this point.
25. McCrudden, supra note 2, at 698.
26. Ibid.
27. Ibid., at 710. Of course, as implied in the introductory paragraphs, this danger is no less present with respect to a number of other key normative concepts in human rights, such as 'equality' or 'autonomy' - and indeed it is true of the idea of 'human rights' itself.
28. At one point in the ongoing struggles to ensure that US detainees were being treated humanely, George W. Bush noted, 'This debate is occurring because of the Supreme Court's ruling that said that we must conduct ourselves under Common Article III of the Geneva Conventions. And Common Article III says that there will be no outrages upon human dignity. It's very vague. What does that mean, "outrages upon human dignity." That's a statement that is wide open to interpretation': Press Conference of the President, 15 Sept. 2006.
29. Consider, e.g., the entire series of cases involving violations of the right to life in Chechnya, the most recent of which is App. No. 20755/ 04, Akhmadova v. Russia, ECHR Judgment of 25 Sept. 2008, not yet reported.
30. See, e.g., the extended way in which this is achieved by John Finnis, in Finnis, supra note 16, at Chap. VIII.
31. When read as an indivisible whole, however, the Universal Declaration may also help to establish some of the boundaries of such specification and balancing, by ensuring that none of the principles are interpreted with complete disregard for the others. Maintaining such a 'practical concordance' of the various principles is a technique used, for instance, by the German Constitutional Court: See D. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2nd edn., 1997), at 45-46.
32. For a full description and study of the disputation between Las Casas and Sepúlveda see L. Hanke, All Mankind is One (1974).
33. There are of course intense ongoing debates over the possibility and difficulty of giving greater definite content to the concept of human dignity in the context of bioethics. For one excellent collection of essays attempting to do so, while recognizing the difficulties of any such attempt, see Human Dignity and Bioethics: Essays Commissioned by the President's Council on Bioethics (2008), and especially the essays by Adam Schulman and F. Daniel Davis in that volume.
34. McCrudden himself seems to acknowledge this, and leaves the question to future research in the area: McCrudden, supra note 2, at 710-712.
35. Yet again it bears repeating that this is the case of any foundational normative concept in law, not uniquely of human dignity.
36. Carozza, 'Il traffico dei diritti umani nell'età postmoderna', in L. Antonini (ed.), Il traffico dei diritti insaziabili (2007).
37. See, e.g., the self-declared 'human rights nihilism' of M.-B. Dembour, in Who Believes in Human Rights? (2006).
38. Carozza, supra note 7, at 77.
39. See the extensive reconstruction in M.A. Glendon, A World Made New (2001).
40. This is most evident in the high degree of non-compliance with international norms in the human rights sphere. See, e.g., Chapter III of any of the recent annual reports of the Inter-American Commission on Human Rights, which detail degrees of state implementation of that Commission's recommendations by the Member States, available at: http://cidh.org/annual.eng.htm.
41. Habermas, 'Pre-Political Foundations of the Democratic Constitutional State?', in J. Habermas and J. Ratzinger, Dialectics of Secularization (2006), at 19, 34.
42. Cf. Alexis de Tocqueville's repeated references to the 'art of association' and the 'art of pursuing in common' the goals of democratic society: A. Tocqueville, Democracy in America (trans. Henry Reeve, 1904).
43. P. Allott, Eunomia: New Order for a New World (1990), at 288.
44. One of the most acute commentators on this depoliticization of social life and its relationship to different understandings and uses of rights is Pierre Manent: See, e.g., P. Manent, A World beyond Politics? (trans. M. Lepain, 2006).
45. See, e.g., Tysiac v. Poland, 45 EHRR (2007) 42 (ECtHR) (failure to provide access to a therapeutic abortion constitutes a violation of Art. 8 ECHR).
46. See, e.g., I. v. United Kingdom, 36 EHRR (2003) 53 (ECtHR) (Grand Chamber) (restriction on ability of post-operative transsexual to marry constitutes a violation of Art. 12 ECHR).
47. See, e.g., Hatton v. United Kingdom, 37 EHRR (2003) 28 (ECtHR) (Grand Chamber) (finding that noise from Heathrow airport did not violate the rights of the petitioners).
48. For instance, the Inter-American Commission on Human Rights is currently considering a number of cases alleging that laws restricting the use of in vitro fertilization techniques violate human rights.
49. On the necessity for law to give good reasons for practical decision see Finnis, 'On Hart's Ways: Law as Reason and as Fact' [2007] American J Jurisprudence (2007) 52.
50. See the epigraph to this essay.