Human Dignity Edward Sieh • Judy McGregor Editors Human Dignity

Establishing Worth and Seeking Solutions Editors Edward Sieh Judy McGregor Justice Studies Social Sciences and Public Policy Lasell College Auckland University of Technology Framingham, Massachusetts, USA Auckland, New Zealand

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This Palgrave Macmillan imprint is published by Springer Nature The registered company is Macmillan Publishers Ltd. The registered company address is: The Campus, 4 Crinan Street, London, N1 9XW, United Kingdom Preface

Defining dignity has taken on its own life force. Scholars including philosophers, lawyers, ethicists, historians and human rights researchers continue to explore the meaning of human dignity from different theoretical perspectives and historical vantages. The concept also has its critics with perhaps the most famous being Arthur Schopenhauer (1965) who claimed dignity was devoid of all meaning and that it was a “shibboleth of all perplexed and empty-headed moralists”. Nearly all of the commentary about dignity refers to the essential difficulties of definition. For example, Martha Nussbaum (2011) describing the creation of capabilities in the Human Development Approach states that dignity is an “intuitive notion” that is by no means entirely clear. She suggests that if it is used in isolation as if it is completely self-evident, it can be used “capriciously and inconsistently” (p. 32). In her examination of discrimination law, Sandra Fredman (2011) states that while dignity is an “intuitively appealing concept” (p. 20) there are also difficulties with the concept being open to both differing interpretations and even opposite results. She argues that dignity should be considered as one facet of a multidimensional notion of equality, which also accommodates disadvantage, acceptance of dif- ference and participation. For Jeremy Waldron, dignity is “a sort of status-concept” that has to do with the standing in the sense of formal legal standing of a person and

v vi Preface that it has to function as a normative idea. “It is the idea of a certain status that ought to be accredited to all persons and taken seriously in the way they are ruled” (p. 202). He acknowledges that this definition is controversial and that other accounts differ. He is right. While there is widespread commitment to human dignity as a notion and perhaps a stronger popular aversion to the notion of indignity, scholarship reveals deep rifts in the writings of lawyers, ethicists, philosophers and human rights advocates on meaning. History reveals at least two divergent strands of thinking, which Ben McJunkin (2012) suggests, “exemplify how sharply such a simple idea can diverge in application” (p. 857). He reports that Kantian dignity revolves around the idea that people should be treated as ends in themselves, never as a means to an end, whereas Judeo-Christian human dignity rests on the belief that people are made in God’s image and hold within themselves an inner sanctum of sacredness that commands respect. Writers tend to cite the multiple alternative dictionary definitions of dignity to demonstrate its opacity and capaciousness. At least one of these meanings refers to dignity as historically associated with membership of an elite group and ascribed higher status (Donnelly, 2013). Then there is the recent growth of typologies of dignity such as Leslie Meltzer Henry’s (2011) five conceptions of dignity as institutional status, equality, liberty, personal integrity and collective virtue. Additional complexity is stirred into the definitional mix when the question is posed: to whom does dignity belong to human beings collectively or to individuals? There is no disagreement though, as Christopher McCrudden (2008) notes, that the idea of dignity has become a central organising tenet of the promulgation and acceptance of universal human rights. Dignity is guar- anteed in seminal human rights documents such as the Universal Declaration of Human Rights which has assumed strong moral and political importance after adoption by the United Nations General Assembly in 1948. The Declaration’s preamble opens with the words: “Whereas recognition of the inherent dignity and of the equal and inalien- able rights of all members of the human family is the foundation of freedom, justice and peace in the world.” Article 1 begins: “All human beings are born free and equal in dignity and rights.” The second paragraph of the preamble of the Charter of the United Nations states: “to reaffirm Preface vii faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small”. The Vienna Declaration of the 1993 World Conference on Human Rights moves dignity to centre stage. The preamble’ssecond paragraph states that “all human rights derive from the dignity and worth inherent in the human person” even if Jack Donnelly (2015) notes how human dignity grounds on human rights is left, at best, obscure. Dignity continues to be a dominant concept in the rhetoric, symbo- lism and force of core international human rights treaties. It can be argued, too, that this centrality has not been diminished by the ubiquity of its use, or the passage of time. For example, in the most modern international human rights treaty adopted by the United Nations General Assembly in 2006, the Convention on the Rights of Persons with Disabilities (CRPD), it is referred to at least seven times. It is used in the context of “the inherent dignity” of a human being or, by contrast, that discrimination violates that state. It is something State Parties are urged to foster in terms of awareness raising in relation to health professionals who interact with persons with disabilities, and at other times it is used in relation to a “sense of dignity” that comes with full development and education. The South African Constitution, the German Basic Law and interna- tional jurisprudence abounds with citations referring to human dignity. The South African Constitution of 1996 developed post-apartheid reads: “The Republic of South Africa is one sovereign democratic state founded on the following values: (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.” The South African Constitutional Court has also made human dignity the basis of its test for unfair discrimination (McConnachie, 2014). The Grundgesetz, German Basic Law of 1949 begins in Article 1 with the words: “Human dignity is inviolable. To respect it and protect it is the duty of all state power.” These words have been carried forward into the Charter on Fundamental Rights of the European Union which came into effect in 2009 with the adoption of the Lisbon Treaty and which states: “Human dignity is inviolable. It must be respected and protected.” Michael Rosen (2012) in his discussion of the history and meaning of dignity reports the significance of dignity in German constitutional viii Preface jurisprudence in a variety of contexts including rejection of the idea of immutable life sentences, limiting state surveillance of private properties and striking down legislation permitting the shooting down of hijacked aircraft because lives should not be unilaterally disposed of by the state. In New Zealand the concept of human dignity has emerged in jurispru- dence on the controversial issue of the “right” to end life, and the Canadian Supreme Court has used human dignity of individuals or groups in the determination of equality claims. In one recent important US Supreme Court decision human dignity was cited nine times (McJunkin, 2015). Despite the imperfections and imprecisions of conceptual definition, there is a taken-for-granted assumption that dignity is good for the human condition and that it is part of our moral DNA. It has been acknowledged that violations of human dignity can be identified and recognised (torture and slavery are obvious examples) even if the abstract term cannot be defined with precision (Beyleveld and Brownsword, 2001). Some scholars suggest linkages between human flourishing and human dignity and human rights (Kleinig and Evans, 2012) and refute treatment of them as discrete and individual ideas. The definitional debate, while important in and of itself, has tended to overshadow the significance of how dignity is expressed, applied and used in daily life. This book aims to remedy the oversight. It has as its central focus a concentration on the application (or not) of dignity in specific global contexts, in relation to different disadvantaged and vulnerable population groups, and with regard to systemic injustices and inequalities. Its chapters rely on the idea that dignity as a concept should not be narrowed down to the restrictions of an uncontested definition or a singular conception should that even be possible. The contributors have resisted the temptation to think that there is a single human telos to which human beings ought to conform, a singularity which philosophers have warned against (Kleinig and Evans, 2013). Narrowing dignity to such a precise, measurable definition assumes that such analysis will reveal an exquisite exactitude. But the guidance that the notion of dignity gives us as humans may instead derive from its sheer inclusiveness. Human dignity takes its complexion from its surroundings just as its opposite, indignity, takes its form and shape from the social norms in Preface ix which it is situated, including inequality and injustice. To borrow from contemporary thinking about disabilities, it can be claimed that dignity is an evolving concept. History has already shown its changing usage from a marker of status to a state of being and a way of living. It is the interaction between human beings and their physical, social, cultural, political, eco- nomic and environmental environments and the presence or absence of barriers to full participation and autonomy of decision-making that is the focus of the chapters in this book. Nussbaum (2011) contends that dignity “needs to be given content by placing it in a network of related notions” (p. 30). Human dignity can also be seen as a foundation for civil, political, economic, social and cultural rights both internationally and domestically. Some of the chapters poignantly talk of the destruction or removal of human dignity as a result of unthinkable oppression, misuse of power, by poverty, incarceration, war and conflict, and through the resultant degradation of the human spirit. They explore causation of indignity such as in protracted refugee situations, or in the context of state- sanctioned ethnic violence, and discuss the consequences for groups and individuals. Some chapters raise the question of the value of human life that is stripped of freedom, denied autonomy of agency and deprived of physical well-being. Living with the stigma of disease such as HIV AIDS deprives thousands of men, women and children of their inherent dignity. Other chapters highlight pervasive and structural disadvantage relating to gender, race, class, caste and disability and the physical and psychic assaults of discrimination on human dignity. Global phenomena such as human trafficking, rampant and wide- spread drug cartels and the misery they inflict, and the human rights challenges and opportunities related to Internet use and digital technol- ogies are also explored with greater reference to specific situational backdrops. The plight of children is examined. Both the catalyst of women’s social movements as expressions of dignity and the inhumanity and degradations suffered by female prison inmates are explored in different cultural contexts. Several chapters acknowledge the close rela- tionship between the concepts of dignity and of respect, such as the use of blood quantum as a marker of indigeneity, and of the inseparability of dignity and equality. Dignity is sometimes regarded as an aspirational ideal that human beings are striving for, what Nussbaum (2011) calls x Preface

“active striving”. With this in mind, several of the chapters offer strate- gies and solutions underscored by a sense of hope and optimism in human growth, development and a maturing of human relations. The contributions in Human Dignity: Establishing Worth and Seeking Solutions reflect a diversity of approaches and methods of data gathering. In some cases, the subjects of dignity are discussed in terms of the rights, demands and aspirations of specific population groups. In several chap- ters the emphasis is more on the sources of dignity or a lack of worth brought about by a nation state’s particular political, social or economic status and circumstances. In some cases, the dignity concept is multi- faceted and interrelated such as in the discussion of dignity and work embracing both dignity of work, with negative examples being slavery and enforced child labour, and dignity at work, with the positive example of an absence of workplace harassment. Contributions come from scholars and activists across political and cultural traditions. Their writings support Jack Donnelly’s (1984) com- ment in his analysis of cultural relativism that there is near universal agreement that certain things cannot be legitimately done to human beings and that failure to act or even speak out against the grossest affronts to human dignity on the grounds of cultural relativism would constitute moral cowardice. The simple act of written expression of findings from research data or secondary sources evidencing human wrongs in the chapters reflects a commitment to change. Sometimes the chapters involve stories from the heart and such narrative is a valid, legitimate and dramatic means of exploring the nuances and context of dignity and the sheer capriciousness and unfairness of human indignity (Mander, 2011). It is hoped that the debate and critique that the contributions will foster is a step in the search for practical solutions to the daily, lived experience of indignity by many. Some chapters suggest the need for international responses, for domestic interventions, for legislative protections, policy development or changes in practice. Taken together the chapters suggest that whatever we take human dignity to mean, we can know how to live with it, just as too many know the daily humiliation and unending despair of living without it.

Judy McGregor and Edward Sieh Preface xi References

Beyleveld, D., & Brownsword, R. (2001). Human dignity in bioethics and biolaw. Oxford: Oxford University Press. Donnelly, J. (2015). Normative versus taxonomic humanity: Varieties of human dignity in the Western tradition. Journal of Human Rights, 14(1), 1–22. Donnelly, J. (1984). Cultural relativism and universal human rights. Human Rights Quarterly, 6(4), 400–419. Fredman, S. (2011). Discrimination law (2nd edition). Oxford: Oxford University Press. Henry, L. M. (2011). The jurisprudence of dignity. University of Pennsylvania Law Review, 169–233. Kleining, J., & Evans, N. G. (2013). Human flourishing, human dignity, and human rights. Law and Philosophy, 32(5), 539–564 Mander, H. (2010). Words from the heart: researching people’s stories. Journal of Human Rights Practice, 2(2), 252–270. McConnachie, C. (2014). Human dignity, “Unfair discrimination” and guidance. Oxford Journal of Legal Studies, 34(3), 609–629. McCrudden, C. (2008). Human dignity and judicial interpretation of human rights. European Journal of International Law, 19(4), 655– 724. McJunkin, B. A. (2012). Rank among equals. Michigan Law Review, 113–855. Nussbaum, M. C. (2011). Creating capabilities. Cambridge, MA and London: The Belknap Press of Harvard University Press. Rosen, M. (2012). Dignity: Its history and meaning. Cambridge, MA: Harvard University Press. Schopenhauer, A. (1915). The basis of morality (2nd edition, p. 101). George Allen & Unwin Ltd. Waldron, J. (2012). How law protects dignity. The Cambridge Law Journal, 71(1), 200–222. Contents

Part I Special Problems

1 Dignity Online and Offline 3 Joy Liddicoat

2 Human Dignity in a World with a Changing Climate 21 Vanessa C.S.P.A. da Costa and Ricardo A.C. de Miranda

3 Dignity and Disability 37 Sylvia Bell

4 Globalization and Human Rights 53 Alok Kumar Meena

5 Dignity and the Fourth Age 61 Isabella Paoletti

6 Dignity Before the European Court of Human Rights 83 Alexander Kuteynikov and Anatoly Boyashov

xiii xiv Contents

Part II Women and Children Issues

7 The Fragility of Children’s Rights in Policies Regarding Poverty 105 Cynthia Lisa Jeans

8 Practices of Dignity and Respect: Children of Immigrants and Justness 127 Paola Rebughini

9 Dignity and Children’s Rights 143 Brian K. Gran

10 Dignity and Human Trafficking Policy in Vietnam: Deconstructing Gender 159 Kim Anh Duong and Rachel Simon-Kumar

11 Re-envisioning the Dignity of Women’s Work 179 Judy McGregor

12 The Indignities of a Women’s Prison 195 Edward Sieh

13 Women’s Local Social Movements 213 Anis Farida

Part III Indigenous and Migrant Issues

14 From “Polymorphism of Violence” to the Complexities of Peace: Towards an Integral Dignity in Colombia 231 Andrés Argüello Parra and Priscyll Anctil Avoine

15 Tijuana: Walls and Borderlines 247 Bernardo Saldaña Contents xv

16 Human Dignity and the Right to Adequate Housing in the Global Mega-Events Era: A Discussion from the Favelas of Rio De Janeiro 263 Sérgio H. Rocha Franco

17 Indigenous Rights: How Can They Be Respected? Indigenous Youth—The Vulnerable 279 Maria Beldi de Alcantara

18 Native American Injustice and the Mathematics of Blood Quantum 301 Esther M. Pearson

19 Repression of Montagnards: Seeking Respect and Dignity 319 Edward Sieh

20 Leaving in Droves from the Orange Groves: The Nepali-Bhutanese Refugee Experience and the Diminishing of Dignity 335 Dr. Susan Banki and Nicole Phillips

21 Human Rights, Transnational Migrations and the Changing Role of Citizenship 353 Maria Rita Bartolomei

22 Dignity and the Invisible Spaces of Irregular Migration: Rendering Asylum Seekers Invisible Through Off-Shore Detention 371 Claudia Tazreiter

Index 385 List of Figures

Fig. 2.1 Atmospheric CO2 at Mauna Loa Observatory (in parts per million ppm) 25 Fig. 2.2 Observed globally averaged combined land and ocean surface temperature anomaly, 1850–2012 (decadal average) 27 Fig. 6.1 Dynamics of the ECHR judgments with reference to “dignity” or “human dignity” 87 Fig. 7.1 Simplified version of framework for analysis 109 Fig. 7.2 Children at risk of poverty and social exclusion 2005–2012 in Iceland, Norway, United Kingdom and European Union 113 Fig. 7.3 The duality between legal definitions of the adult–child relationship 114 Fig. 7.4 The tensions between state and parental obligations towards children 116 Fig. 7.5 The focus on child support policies in Norway, Iceland and United Kingdom in 2000–2011 120 Map 13.1 Indonesia 217 Fig. 17.1 Mortality to external causes—Suicide and Homicide in DSEIs-MS Reference 2000–2014 293

xvii List of Tables

Table 5.1 Aging worldwide 68 Table 6.1 Judgments with dignity references and all judgments in regard to the court formations* 89 Table 6.2 Judgments with dignity references and all judgments with the importance level* 89 Table 6.3 Rights most frequently violated in the judgments with reference to “dignity” or “human dignity” 90 Table 7.1 Basis for selecting the states analysed in this study 111 Table 7.2 The various approaches to child policy and influence on rights 115 Table 10.1 Vietnamese National Action Program Against Trafficking 2004–2015 165 Table 13.1 The aims of the collective activities 220

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