Human Dignity and other Relevant Concepts in International and South African Human Rights Law: A Search for Content
Authors Gerrit Ferreira & Anél Ferreira-Snyman
Affiliations: B Iuris (PUCHO), LLB (PUCHO), LLM (RAU), LLD (UNISA), LLD (PUCHO), Professor of Law Extraordinary, NWU, Potchefstroom Campus; B Iuris (PUCHO), LLB (PUCHO), LLM (PUCHO), LLD (UJ), Professor of Law, UNISA.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 52 Issue 3, p. 410 – 442
As a result of the human rights atrocities committed during the Second World War, the human dignity of individuals has become the central concern in many international and regional instruments and domestic constitutions. The Constitution of the Republic of South Africa, 1996 is no exception and places a particular emphasis on the concept of human dignity. In view of the continuing popularisation of the concept, this contribution discusses the current application of human dignity and related concepts within international, regional and South African human rights law in an attempt to get a clearer grasp of its contents. Although human dignity is not explicitly protected in all international and regional instruments and domestic constitutions, its protection is either implicit in the protection of other specific human rights, or explicitly forms part of the protection of such rights. It therefore seems that every individual human right protects some aspect of human dignity. Furthermore, the application of the concept of human dignity seems to relate to other existing concepts in both international and South African law. First, the question as to whether the protection of human dignity in international law may be equated with concepts such as jus cogens and non-derogable rights is analysed. Second, the issues regarding the relation between human dignity and the concepts of ubuntu, boni mores and the public interest are discussed. It is concluded that human dignity is a fluid, vague and ever-changing concept and that as a result of cultural and religious differences it would be virtually impossible to formulate a generic (one-size-fits-all) definition of human dignity that would be acceptable to all cultural and religious groups. It is therefore suggested that the application of human dignity by the courts should be limited to that of a constitutional value that underpins all fundamental rights, rather than elevating it to an all-encompassing right that functions, in practice, independent from all other fundamental rights. The latter would result in an attenuation of the human rights regime in international, regional and domestic law.