Editor’s note: This post is part of the EJIL:Talk! Symposium on ‘Expanding Human Rights Protection to Non-Human Subjects? African, Inter-American and European Perspectives.’
As in previous industrial revolutions –bolstered by scientific discovery– bold entrepreneurs seek to influence decision-makers and shape social and legal rules to achieve the precarious assembly of raw materials, energy, labour, and know-how that ought to deliver satisfaction to their vision of society’s renewed transactional needs and ambitions. As in previous industrial revolutions, the choice of assembly comes with a piercing cost that must be endured with intercultural and intergenerational resilience. In this case it features influential commercial narratives on the mainstreaming of automation, enhanced connectivity and artificial intelligence products and services –available both for industry and the everyday life of consumers— taking for granted that labour, education, and privacy, as we understand them, will be transformed radically.
For all our XXI century anticipation of abrupt economic and social change, our XX century international legal system based on the paradigm of the national state, still governs the recognition of individual rights and the determination of international responsibility. It is with these conceptual tools that we hold our debates on whether hard won –and in many cases still sought— individual rights should be extended to other species or to man-made autonomous AI entities, and to what extent –in view of their role and impact— commercial legal entities should both be recognized as having rights and be held accountable for human rights violations.
This transitional search for transformational tools, should not abandon dignity as a basis for the legitimacy of legal obligations. Ever present in foundational preambles and seminal legal reasonings of the XX century, human dignity remains a universal catalyst for the elucidation of legitimacy of legal obligations. Further delving into the notion of dignity may throw light on whether and how the paradigm of the rights-based approach may provide the answers we look for or –even better— the right questions.
1. The recognition of human dignity
After many centuries of disputed narratives mostly based on religion, birth, and the use of force, the end of the Second World War opened a window of opportunity to enshrine human dignity as a universal measure for the enjoyment of individual rights and the determination of state responsibilities. As an influential antecedent to the Universal Declaration of Human Rights, the path to recognition of human dignity in the 1948 American Declaration on the Rights and Duties of Man was momentous (for how the process leading to the adoption of the American Declaration influenced the final draft of the Universal Declaration see here and here p. 74-79). Latin American states acknowledged that all persons “are born free and equal, in dignity and in rights” based on the recognition of the dignity of the individual in the national constitutions. Thereby, the resolution of the Ninth Meeting of American States indicates that “the American peoples have acknowledged the dignity of the individual, and their national constitutions recognize that juridical and political institutions, which regulate life in human society, have as their principal aim the protection of the essential rights of human beings…”. The Preamble of the Declaration goes on to state that “all (persons) are born free and equal, in dignity and in rights”.
Historical accounts show that –at the time— the recognition of human dignity in the text of the Universal Declaration as the inherent and equal worth of all human beings, underlaying the fundamental unity and diversity of all members of the human family, was not welcome without controversy. Some member States of the United Nations –predictably, former or still active colonial powers— initially resisted the inclusion of the right to equality before the law and the right to justice which are seminal to our understanding of dignity (see here and here p. 74-79).
As foundational to the rights-based approach developed during the second half of the century by the international supervision systems, the protection of human dignity today is as fundamental as it is fragile. At the same time, as it was essential to the recognition and protection of the rights of individuals and communities, it ought to be explored further while considering the recognition and enforcement of rights of other species and our shared ecosystems, as well as potential rights of man-made entities. In particular, it is relevant to explore dimensions relating to equality, interculturality and intergenerational rights.
2. Equality and intercultural dimensions of dignity
The Inter-American Court of Human Rights has established that the notion of equality in Articles 1.1 and 24 of the American Convention is directly derived from the unity of the nature of the human race and is inseparable from the essential dignity of the person. In this sense, the right to equality is incompatible with any situation that, by considering a certain group superior, leads to privileging it over others; or that, conversely, by considering it inferior, treats it with hostility or in any way discriminates against it in access to rights that are recognized to other groups. States must refrain from adopting measures that directly or indirectly generate or validate situations of de jure or de facto discrimination. Thus, States have the obligation to respect and ensure the rights and freedoms recognized to all persons subject to their jurisdiction, without discrimination of any kind on the basis of race, colour, sex, language, religion, political or other opinions, national or social origin, economic position, birth or any other social condition. In this regard, the Court has indicated (para. 103, paras. 91-93) that at the current stage of the evolution of international law, the fundamental principle of equality and non-discrimination has entered the domain of Jus Cogens, on which the legal framework of national and international public order rests.
The right to equality before the law enshrined in article 24 of the Convention has two dimensions: a first formal or de jure dimension that prohibits discrimination and arbitrary differences in treatment in the legal system of the State; and a second dimension, of a material nature, that requires the application of the law without discrimination and generates positive obligations for the State, aimed at ensuring access to justice under conditions of equality. The latter may require the adoption of positive measures for groups that have historically been discriminated against or marginalized. In short, the obligation to respect or guarantee a conventional right without discrimination – provided for in Article 1.1 in conjunction with the right to equality before the law provided for in Article 24 of the American Convention – involves the adoption of measures to overcome situations of social exclusion and marginalization and to promote inclusion, participation and the guarantee of the effective enjoyment of rights through both legislation and the administration of justice (para. 199, paras 94-95). These notions of dignity and equality must also be interpreted, dynamically, in light of the intercultural dimensions that define our post-colonial societies around the world.
In the case of the Americas, indigenous peoples have gone through historical processes of resistance to colonization that continue to the present day. Despite a rich spectrum of cultural assimilation, there is great internal diversity within indigenous peoples in terms of language, customs, social organization, and interactions with state representatives, companies, and other social groups. They may find themselves excluded from the dynamics of global development and be affected by concessions to extractive industries. Therefore, their dignity as a collective is marked by subordination, ethnic and racial discrimination, as well as adaptation and resistance.
Also, there are Afro-descendant individuals and communities that having gained freedom from the shackles of slave regimes in force until the mid-19th century, faced the colossal socioeconomic challenge of integrating into society on equal terms during the 20th century. With the gradual strengthening of democratic regimes and the establishment of universal suffrage, access to work without discrimination as a means of social integration of Afro-descendants was recognized in the national constitutions of the second half of the 20th century and in human rights treaties. Yet, despite the recognition of the right to equality and its legal protection in its formal dimension, well into the 21st century Afro-descendants face notable challenges in attaining equality in its material dimension.
Democratic coexistence within the framework of the rule of law is inconceivable without respect for the right to equality before the law and access to economic, social and cultural rights as dignified means to achieve self-determination in contemporary society. There is still much to be done to realise the rights and dignity of individuals and communities, as envisioned in the 19th and the 20th centuries. The coming industrial and technological revolution and its debates on the growing role and strengthened legal personality of transnational companies, and on the elevation of their AI commercial products and services to a protected status, should not postpone or subordinate the intercultural and democratic dialogue of our human societies.
3. Intergenerational dimension of dignity and the environment
Access to the results of scientific research on our environment has dramatically increased awareness of the accelerated variation of the conditions that make possible the survival of our species and many of other species inhabiting our planet. The risk of reaching a tipping point that will dramatically modify climate, among other factors, increases with time. As established by scientific evidence, the lack of due diligence of present generations involved in decision-making may well have long term consequences for the lives of young and future generations as well as for other species on our planet. Therefore, children have raised their voices through activism and strategic litigation to articulate claims on behalf of future generations to enjoy a healthy environment, as a response to the triple threat associated with the environmental crisis: climate change, biodiversity loss, and pollution, which can have devastating consequences for our biosphere.
There are at least three elements to consider. In the first place, the vital importance of producing the best possible scientific research –as well as raising awareness of traditional local knowledge— as a catalyst to understand our ecosystems and the importance of ensuring access and awareness of the results of said research, which should inform public policy and private sector decision-making. In the second place, scientists have established that the co-dependency of our species with the others –fauna, flora— is part of the equilibrium that creates the conditions for our collective survival on the planet we inhabit. It follows that this co-dependency merits legal protection. In the third place –unless mitigated by due diligence standards— extractive, industrial and agrarian activities can produce long term cumulative consequences that accelerate impacts with intergenerational consequences. It follows that enforced adaptation measures may diminish the quality of future generations’ life projects.
In the case of La Oroya V. Peru, the Inter-American Court pointed out that it is difficult to imagine international obligations with greater significance than those protecting the environment against unlawful or arbitrary conduct that causes serious, extensive, long-lasting and irreversible damage to the environment in a climate crisis scenario that threatens the survival of many species in our planet. Therefore, international protection of the environment requires the progressive recognition of the prohibition of conduct of this type as a peremptory norm that may gain the recognition of the international community as a norm that does not admit derogation. In this sense, the Court indicated (para 129) that ensuring the interest of both present and future generations and the conservation of the environment against its radical degradation is fundamental for the survival of humanity.