Dignità umana in senso statico e diritto internazionale

Abstract

In the first paragraphs of this paper a critical overview of the scientific debate on the notion of human dignity in international law is carried out. A widespread tendency to focus on the functions of dignity, without deepening its legal meaning(s), is considered as being the common feature of such a debate. At variance with this tendency, it is exactly the legal meaning of dignity to be scrutinized, with specific reference to its traditional dimension. Such a dimension, that is defined static, concerns the protection of individuals from actions or omissions, mostly – albeit not exclusively – attributable to state power, and capable of negatively affecting their basic conditions, both in terms of civil and political rights, and in terms of social rights (paras. 1 and 2). Starting from the main international legal texts adopted after the Second World War (para. 3), it is shown that within the relevant (international) judicial and quasi-judicial practice, dignity amounts to the minimum treatment due from states to individuals within their jurisdiction, primarily seen in their civil and political dimension (paras. 4, 5, 6). Furthermore, it is emphasized that some confirmations of the above can also be drawn from national case law (para. 7). As a result of this part of the paper, it is highlighted the legal, autonomous, and broader meaning of this notion, with respect to some international human rights rules, such as the bans of torture and inhuman or degrading treatments. Second, an attempt is carried out to highlight, accordingly, the multiple legal situations affected by dignity; to distinguish it from other notions, equally used in the field at stake; to point out that negative and positive obligations stem from dignity (para. 8). Next, the discourse is broadened to the sphere of social rights, by asking whether the notion of dignity working in such a sphere is analogous to that working in the field of civil and political rights. A positive answer is provided to this question, considering what comes out form the relevant international practice (paras. 9, 10, and 11). In other words, it is emphasized that, even in this context, dignity amounts to a minimum level of treatment to be recognized to individuals, albeit in a peculiar way. In addition, it is shown that some confirmations of this trend can be drawn from domestic judicial practice (para. 12). In drawing conclusions of the analysis, it is argued that the static notion of human dignity takes the legal shape of a principle in the field of civil and political rights. An attempt to clarify the legal functions of this principle is made, as well as to identify the category of principles to which it can be traced back under international law, and to define its scope (para. 13). Analogous conclusions are reached also with reference to the principle of dignity in the field of social rights, notwithstanding that the legal role played by such a principle is more limited than that one played with respect to civil and political rights (para. 14).