Dignity

One of the frequent questions posed about human rights is what is their foundation? If human rights are so fundamental and important that they are given a status that is different to some other legal norms, how is that justified? Although there are many approaches to justifying human rights, such as consequentialist arguments, minimal conceptions of rights, and political conceptions of rights, many of the major human rights documents refer to human dignity as the foundational basis for the rights they contain.

In none of these documents is dignity actually defined. It is also not clear what role dignity plays in shaping human rights and the implementation and realisation of rights. Waldron has stated that, “[d]ignity is intimately connected with the idea of rights—as the ground of rights, and the content of certain rights, and perhaps even the form and structural character of rights”. This suggests a fundamental role of dignity in the foundation of rights, but also in how we define the obligations for states that human rights create and perhaps even in their judicial enforcement. However, for dignity to have such a fundamental role, an agreed definition of dignity becomes important; what is a dignified life and perhaps more importantly what would constitute a violation of human dignity?

Defining Human Dignity

McCrudden has described the inclusion of dignity in the Universal Declaration of Human Rights (UDHR) as controversial. Humphry, one of the drafters of the UDHR, described the addition of dignity by Cassin, another drafter, as being mere rhetoric that added little to the draft. Yet, McCrudden suggests dignity did serve a purpose in that it “supplied a theoretical basis for the human rights movement in the absence of any other consensus”. When the Declaration was being drafted, there was a need to unite states with a range of disparate ideologies and cultures. The ideology presented to them had to be as politically neutral as possible – neither communist, nor capitalist in its leanings. As such, an appeal to common humanity served to bridge the ideological, cultural and political chasms between these States. In this way, dignity became a core principle that states could agree on as a foundation of human rights.

Dignity is a word that has meaning, but the meaning attributed to it will vary from person to person. Different parties could conceive human dignity as embodying their particular set of values and worldview. It was all things to all people. Certain common features can be identified in the use and explanations of dignity, which has led McCrudden to suggest “a minimum core” of dignity.

• Every human being possesses an intrinsic worth, merely by being human.
• This intrinsic worth should be recognized and respected by others, and some forms of treatment by others are inconsistent with, or required by, respect for this intrinsic worth.
• Recognizing the intrinsic worth of the individual requires that the state should be seen to exist for the sake of the individual human being, and not vice versa.

Dignity and Specific Human Rights

Certain rights have clearer links to human dignity than others. Although human rights documents indicate dignity as the foundation for all the rights they contain, some rights are then specifically related to dignity in the documents or have become clearly linked to dignity by their development and judicial interpretation over time. This is most often the case with the prohibition of torture, inhuman, cruel or degrading treatment or punishment (TIDT) (see TIDT Chapter). The American Convention on Human Rights also recognises the right of everyone to have “his honor respected and dignity recognised” as part of Article 11, the right to privacy.

The European Court of Human Rights (ECtHR) has developed a clear link between the prohibition of TIDT in Article 3 and dignity. In the case of Selmouni v France, the Court states:

The ECtHR has also specifically linked dignity to degrading treatment. In the case of Bouyid v Belgium, a single slap on the face of a teenager in police custody was found to be degrading treatment and a violation of Article 3 ECHR. The ECtHR stated that the violence was unjustified and so “diminishes human dignity”. The ECtHR will also find a violation of Article 3 ECHR in relation to treatment that is “an affront to human dignity” (see Trispiotis and Purshouse). In the case of Budina v Russia, the ECtHR considered whether the standard of living that the state pension provided for was so low that it amounted to a violation of Article 3 ECHR. Although the ECtHR did not find a violation of Article 3, they did clearly link their assessment of when living conditions would amount to a violation of Article 3 stating:

The Inter-American Court of Human Rights has expanded the scope of the right to life to include a ‘vida digna.’ This concept, first explored in Villagrán-Morales et al v Guatemala, a case concerning ‘street children’, creates on obligation for states to ensure the “minimum conditions that are compatible with the dignity of the human person”. This approach has meant socioeconomic rights, such as the right to food, water and health have been brought within the scope of the right to life and justiciable. For example, in the cases of Sawhoyamaxa v Paraguay and Yakye Axa v Paraguay, the IACtHR held that Paraguay had violated the right to life as it had allowed peopled dispossessed of their ancestral lands to live on the side of the road, without access to food, sanitation and clean water or healthcare.

Dignity can be considered in a variety of human rights cases, but this is not without controversy due to the lack of a clear definition of the term. Dignity can potentially give judges a large amount of latitude in their reasoning, resulting in diverse results in the same case. In the Canadian Supreme Court case of Gosselin v Quebec, a social security scheme requiring young people to carry out certain tasks to receive their welfare benefits was found by the majority to not violate the dignity of applicants, as the government’s motives to encourage people into long term employment were clear. However, the dissenting judgement of L’Heureux Dubé J argued that such schemes risked isolating people and preventing full participation in society, which was a violation of their dignity.

Such different outcomes could also potentially arise when using dignity to decide matters related to issues such as euthanasia and abortion. Dignity could be used to defend the value of life, prohibiting abortion and euthanasia. At the same time dignity could be used to support arguments around autonomy and choice which would make both abortion and euthanasia permissible.  For example, the ECtHR has heard several cases concerning people with terminal illnesses wishing to end their lives that include alleged violations of Article 3 ECHR. In the case of Pretty v UK,  the applicant stated that the death she faced as someone dying of motor neurone disease was undignified. She argued that due to her disease she was physically unable to take her own life if her husband could not assist her without risking criminal prosecution, and claimed this was a violation of Article 3 ECHR. However the ECtHR did not find a violation as they stated that Article 3 could not be interpreted to include positive obligations that “require that the State sanction actions intended to terminate life”.

Dignity could also potentially be used to prohibit a practice seen as degrading by the government, but which an individual freely consents to and considers taking part in that activity to be an integral part of them living a dignified life. In the case of Wackenheim v France, the French Government banned the practice of ‘dwarf tossing’ in entertainment establishments as they considered it an affront to human dignity. Mr Wackenheim argued that this ban stopped him from working, which he considered an affront to his dignity. He linked human dignity to having a job, arguing that as a person of short stature, his opportunities for employment were limited in France. The UN Human Rights Committee did not find a violation of Mr Wackenheim’s rights indicating that:

This case, although from some time ago, demonstrates the concern that dignity can be used to reach what many might consider an unexpected result. This does not mean that dignity should be abandoned. It is one of the justifications for human rights that is widely accepted and broadly understood. However, dignity is not the only relevant foundational principle or consideration in relation to human rights. Equality, another such principle, which has overlapping features with dignity, will now be considered.

Equality

Like dignity, equality is mentioned in the preamble to many human rights documents (see textbox above). Article 1 of the UDHR states “All human beings are born free and equal in dignity and rights”. If we are equal, this suggests that we should all be treated with the same level of respect. It also implies that all humans have the same moral “value”, a concept often referred to as equal moral worth or equal moral status.

However, there is much debate about what this means in practice, for example, there is widespread poverty throughout the world, which results from inequality in access to socioeconomic resources. However, suggestions that resources be equally distributed between all, so everyone has the same, regardless of what work they do would likely be rejected by most. Some would argue that equality of opportunity is required by equality; we would all have the same opportunities in relation to, for example, education and work, and the ability to make autonomous decisions. Others would suggest we adopt an egalitarian approach that requires systems that treat people equally regardless of the decisions they have made in life; you would be entitled to welfare benefits and support regardless of why you needed them, even if your poor decisions contributed to your situation. At this point we will turn to consider what is required for equality in a more practical sense as well as introducing the central role of equality and non-discrimination in international human rights law.

Formal Equality

Formal equality focuses on processes rather than outcomes and at its most basic level requires that everyone is treated equally. Individual characteristics are irrelevant in determining how they are treated or whether they are given access to a particular benefit. This means formal equality is satisfied even if everyone is treated badly. The focus of formal equality on process rather than outcome means that although a rule may appear neutral, the outcome may not be. A common example given in this context is of three people of varying height trying to see over a fence. The same sized box is given to all three, this is equal treatment and so is formal equality. However, if the box is only sufficiently high to enable one of the people to see over the fence, there is no equality in the outcomes; two people can still not see over the fence. Presuming the aim of giving everyone a box was to enable them to see over the fence, this formal equality approach has failed. To ensure equality of outcome, you may need to consider peoples’ characteristics and the structural barriers that contribute to peoples’ disadvantage.

Substantive Equality

Sandra Fredman’s approach to substantive equality aims to tackle not only the limitations of formal equality but also to “redress disadvantage; address stigma, stereotyping, prejudice, and violence; enhance voice and participation; and accommodate difference and achieve structural change”. This creates four dimensions:

Considering examples of each of these dimensions in turn, an example of a redistributive measure would be affirmative action, for example temporary special measures in Article 4 CEDAW. Such measures aim to accelerate achievement of equality between men and women. Such measures are temporary but should continue until equality of opportunity and treatment has been achieved and maintained for some time. Such measures would include quotas for women given places at University or short-lists for the selection of political candidates that only contain women. Such lists would increase the number of women accessing education or taking part in political processes.

Removing practices that segregate certain groups demonstrates the importance of the recognition dimension of substantive equality. Prior to the case of Brown v Board of Education, education in the USA was segregated. This USA Supreme Court case ruled that segregated education with black and white children attending different schools, was unconstitutional. In the ruling, the Supreme Court stated “We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal”.

Participation requiring that marginalised groups are given a voice may require special political arrangements. For example, the power sharing agreement in the Northern Ireland Assembly, which ensures representation of both protestant and catholic communities.

Finally, transformation may include changing traditional working hours of nine-to-five. These are set on the assumption that childcare is carried out by one parent who does not work or works part time to look after the children when the children are not at school. A transformative approach would make working hours more flexible so parents can fully participate in the labour market.

Equality and Non-Discrimination in International Human Rights Law

Within international human rights law, equality and non-discrimination can be a standalone autonomous norm. For example, Article 26 of the ICCPR states that “[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection to the law.” This provision can be violated without violation of any other rights contained within the ICCPR (see also Protocol 12 to the ECHR). However, many international and regional human rights treaties also contain subordinate provisions. These are provisions that prohibit discrimination within the ambit of other rights in the treaty.

Provisions like Article 14 ECHR are ancillary and designed to complement other rights in the treaty. Victims can only invoke Article 14 in the context of complaining of a breach of another substantive right in the Convention. It is most commonly used for discrimination in the context of Article 8’s right to private and family life and the right to education in Article 1 of Protocol 1. It should be noted that these provisions include lists of protected characteristics that are not exhaustive and so allow additional grounds of discrimination to be considered. The inclusion of such provisions means equality and non-discrimination are fundamental to all human rights and should be central when rights are being implemented. Indeed, non-discrimination is an aspect of socio-economic rights that is to be immediately, rather than progressively, realised. This means, that although states are not expected to immediately guarantee to everyone in their jurisdiction the rights in the ICESCR, any steps they do take cannot be discriminatory.

Indivisibility and Interdependence

References to the indivisibility and interdependence of human rights abound in human rights literature and Quane observes that the terms “interdependence” and “indivisibility” of human rights are often used interchangeably. The original UNGA Resolution, in which it called on the Economic and Social Council to draft a single covenant on human rights, observes that “the enjoyment of civic and political freedoms and of economic, social and cultural rights are interconnected and interdependent”. However, not long after this statement, the UN itself undermined these principles by dividing the UDHR into two separate treaties, the ICCPR and ICESCR [see discussion in The UN System of International Human Rights Protection Chapter]. Much effort has been expended since then to re-emphasise the indivisibility and interdependence of human rights law. At the UN International Conference on Human Rights in Tehran 1968, the UN issued a proclamation stating “Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible”. Perhaps the most famous example is the Vienna Declaration and Programme of Action 1993 where the UN observed:

Distinguishing Interdependence and Indivisibility

The terms together connote a mutually reinforcing dynamic between different categories of rights. The effective implementation of one category of rights can contribute to the effective implementation of other categories of rights and vice versa. Nikel defines indivisibility as “the idea that no human right can be fully realized without fully realizing all other human rights”. Essink and others note that the indivisibility of human rights “entails a mutually reinforcing relationship among different human rights”. Nickel also notes that the principle of indivisibility should be distinguished from interdependence noting they “are not the same. Many more rights are interdependent than are indivisible. Indivisibility is a very strong form of interdependence (or bidirectional support)”.

In practice, we often see rights violations in clusters. Countries with weak labour protections (economic rights) often also have limitations on freedom of association (civil rights). During the Covid-19 pandemic, restrictions on freedom of movement (civil rights) directly impacted other rights, such as the rights to education and healthcare (social rights). However, Nickel and others argue claims that all human rights are indivisible are overstated and inaccurate. Nickel observes that “United Nations statements about indivisibility are broad overstatements of more modest truths”. Much of these criticisms revolve around the idea that for true indivisibility to exist, there must be mutual reinforcement, that both rights must be supporting the other’s realisation. Critics note the evidence for mutual reinforcement of all rights is often weak. While it might hold true for some rights e.g. Essink and others note the right to housing is strongly correlated with the right to health, it is not the case for all rights. Nickel notes that there can often be weak correlations between rights and situations where supporting one right is useful, but not indispensable to the other right. A strong correlation between two human rights doesn’t necessarily prove they are mutually reinforcing. It is a case of confusing correlation with causation.

Hierarchy

Quane notes the concept of interdependence and indivisibility of human rights “refutes any suggestion of a hierarchy of rights” in the sense that certain categories of human rights are treated as more important than others. Both the ICCPR and ICESCR allude to this by claiming that all rights derive from the inherent dignity of the human person and that, therefore, no right takes priority over the other and that no hierarchy could be drawn. Laplante notes that appeals to indivisibility have sought to paper over the division created by the original splitting of the UDHR into two distinct treaties. A perception has taken root over time, fostered to a large extent by the way in which the ICCPR and ICESCR are framed, that civil and political (CP) rights are more important than economic, social and cultural (ESC) rights. Lott observes that ESC rights are “historically viewed as of less importance than civil and political rights, lacking in clarity (due a slowness in clarifying the normative content of these rights), expensive to implement, to be implemented progressively, as non-justiciable, and even as “not a matter of rights”. CP rights tend to be framed in much more imperative terms. If we look at the Right to Life in the ICCPR, for example, it states that

Notice the terms used here – “shall be”, “no one” – they are imperative, they do not permit exceptions – this shall be done. This can be contrasted with how some ESC rights are framed in the ICESCR. The right to work, for example, is framed in these terms

Notice the difference in terms here – “recognise”, “opportunity to” “take appropriate steps” – the framing is much more equivocal and conditional. The ICESCR, as a whole, is full of aspirational language. The rights are to be “progressively realised” through “available resources”, which has given rise to a perception that ESC rights are less important, nice to have, but not mandatory like CP rights.

This perception has been made worse by a clear disparity in enforcement. As Kleinlein notes, it has taken a much longer time for the individual complaints mechanism for ESC rights to come online. The CESC individual complaints mechanism only came into force in 2013 and only has 46 signatories at the time of writing (June 2026). By contrast, the Human Rights Committee’s individual complaint mechanism came into force in 1976 and has 116 signatories. This means the levels of institutional protection of ESC rights are not as high as for CP rights. The principles of indivisibility and interdependence have sought to counteract the negative perception that ESC rights are less important, to equalise the emphasis on both types of rights and restore the parity taken away when the UDHR was divided into two treaties.

The concepts of interdependence and indivisibility can perhaps also give a false sense of total parity between rights, when in reality there are substantial differences between different types of rights (see further discussion in the Chapter on Types of Obligations), which at times border on having a hierarchical relationship to one another. Some rights, such as the prohibition on slavery, are considered jus cogens norms. According the Vienna Convention on the Law of Treaties, these rights are accepted and recognised by the international community as a whole as norms from which no derogation is permitted and they override any conflicting rules in a treaty. Meanwhile other rights, such as the right to freedom of expression, are qualified and can be interfered with in a variety of different circumstances.

Claims that rights are indivisible can also be damaging to human rights protection, resulting in a situation where prioritisation of rights is undermined. The UN’s insistence, for example, that all states must give “the same emphasis” to all rights can limit a State’s ability to focus on specific problem areas or areas which will confer more material benefits to their citizens in the short term.

The Future of Indivisibility and Interdependence

It is open to question whether the principles will continue to be a relevant concern in international human rights law in the future. Kleinlein notes that the division between ESC and CP rights is becoming less significant over time as later treaties have combined both ESC and CP rights. The CRPD, for example, includes both paradigmatic CP rights (such as the prohibition on torture in Article 15) and ESC rights (like the right to health in Article 25).

The division between CP and ESC rights has also become less pronounced over time in part because of efforts to interpret CP rights in light of ESC rights and vice versa in a variety of different forums. Among the different regional human rights bodies, Volou notes the reading of positive obligations into civil and political rights has added socio-economic dimensions to different CP rights. Volou offers the example of the expansion of the right to life under the ECHR to cover aspects more readily associated with environmental rights (e.g. Guerra v Italy and Oneryildiz v Turkey) and the right to healthcare (e.g. Lopes de Sousa v Portugal). Koch offers extensive evidence of the ECtHR protecting a variety of different economic, social and cultural rights through their jurisprudence on civil and political rights. While the CESCR in General Comment No. 14 on the right to health linked the realisation of health to civil rights like access to information and freedom from discrimination.

Rule of Law

The rule of law, as a principle, is extremely difficult to define because it is invoked in a variety of different contexts to mean a variety of different things. We can see this when we examine references to the rule of law in different contexts. In 2004, UN Secretary-General Kofi Annan said

In this one quote we can see the rule of law in many different guises, as a principle of governance, an accountability mechanism, a procedural requirement of laws themselves e.g. public promulgation and a wrapper around disparate other concepts e.g. supremacy of law, equality before the law etc. A similar variety is reflected in international legal documents. The UDHR, for example, states that “human rights should be protected by the rule of law”. In this context, the rule of law seems to be something antecedent, a framework or environment in which human rights are realised. The preamble to the European Convention on Human Rights, by contrast, refers to “the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law”. In this context, the rule of law appears to be invoked as a shared belief among European states. Other important human rights treaties, like the ICCPR and the American Convention on Human Rights, make no reference to the concept of the “rule of law” whatsoever in their texts.

At its core, the rule of law seeks to prevent arbitrariness. The European Court of Human Rights observed in Grzeda v Poland that “arbitrariness entails a negation of the rule of law”. Tom Bingham described arbitrariness as the “antithesis of the rule of law”. As such, it cuts across a variety of important principles of human rights law, equality, non-discrimination, universality and even human dignity. Theorists like Lon Fuller contended that adherence to the rule of law showed ultimate respect for human dignity. There are a variety of opinions on what the rule of law means. To many theorists, such as John Finnis, Joseph Raz and Lon Fuller, the rule of law is a formal concept. It requires that law should conform to standards that are designed to enable it to effectively guide peoples’ actions. Fuller famously set out eight formal principles of what he described as “inner morality of law” – generality, prospectivity, publicity, consistency, practicability, clarity, stability, congruence with official action. Others, like Ronald Dworkin and Trevor Allen, considered that there is more substance to the rule of law and that it could/should play a role in determining whether a law passed by the legislature should be considered valid or not. We can see elements of each approach reflected in contemporary International Human Rights Law. Tom Bingham, a renowned British judge, incorporated elements of both formal and substantive theorists in his David Williams lecture at the University of Cambridge, distilling the rule of law into 8 sub-rules.

Accessibility

The first sub-rule relates directly to formal criteria “the law must be accessible and so far as possible intelligible, clear and predictable”. We can see this sub-rule reflected in different international human rights law treaties when we look at qualified rights. The right to freedom of expression, for example, in the ICCPR requires that any restrictions on freedom of expression are “provided by law”. The European Convention uses the term “prescribed by law”, while the American Convention refers to the requirement that restrictions be “expressly established by law”. This approach is mirrored across other qualified rights. In a famous passage from the case of Sunday Times v UK, the European Court of Human Rights interpreted the term in Article 10 in a way which directly reflects the characteristics set out by Fuller and Bingham

Addressing Arbitrariness

The second sub-rule is that “questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion”. This sub-rule speaks to the need to avoid arbitrariness discussed above and is often reflected in the administrative laws of different states. We can see an example of this in how human rights law can regulate sentencing procedures. At the European Court of Human Rights, the case of V v UK is instructive. Under UK law, sentencing for crimes can include retributive and rehabilitative elements. The retributive element involves serving a minimum term in prison called a tariff. In this case, the applicants were sentenced to “detention during Her Majesty’s pleasure”, an indefinite sentence typically used for young offenders instead of a life sentence. The trial judge recommended a tariff of 8 years, but a government minister, who at the time had a role in sentencing, set a tariff of 15 years. The applicants challenged the imposition of the sentence as a violation of their right to a fair trial at the ECtHR, which states that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal”. The ECtHR held the right to a fair trial by an independent and impartial tribunal covered the entirety of the proceedings, including sentencing and setting a tariff amounted to a sentencing exercise for the purposes of Article 6. Independence for the purposes of this article meant independent from both the parties and the executive. As the tariff was set by a government minister, a member of executive, Article 6 was violated. We can see the second sub-rule reflected here because the court prevented the exercise of discretion by a minister from determining the applicants’ legal rights.

In another judgment before the European Court of Human Rights, Walesa v Poland, the applicant challenged the arbitrariness of certain legal processes in the Polish legal system. Under Polish law, an action could be brought by the Prosecutor General, a politician, to contest final decisions of the judiciary before the Chamber of Extraordinary Review and Public Affairs of the Supreme Court (CERPA). A good summary of the case is available here. The case brought against the applicant by the Prosecutor General involved reopening a case that had been finalised for over nine years and had been examined in detail by several courts in Poland. The ECtHR found that both the court and procedure gave rise to a range of violations of the rule of law. The court criticised the wide discretion afforded to politicians to lodge extraordinary appeals which “opens the door to possible arbitrariness, misuse of the legal remedy and abuse of process”. They noted the role that politicians play in the process of bringing these extraordinary appeals, which effectively gave the executive “unlimited power to contest virtually any final judicial decision” risked creating “a tool of political supervision over court judgments by the executive” thereby violating the Convention. This procedure also contradicted principles closely associated with the rule of law, namely the principle of legal certainty and res judicata. Previously, in Gudmundur Andri Ástrádsson v Iceland, the court noted the principle of legal certainty was “implicit in all the Articles of the Convention” and is “one of the benchmarks of the rule of law”. Legal certainty required respect for the principle of res judicata i.e. “that where the courts have finally determined an issue, their ruling should not be called into question”. The court rightly noted that this principle played an important role in safeguarding the finality of judgments, ensuring the stability of the judicial system and contributing to public confidence in the courts. In Walesa, the court considered the fact that Prosecutor General was allowed to bring such actions, even against judicial decisions that pre-dated the Act’s entry into force, violated the principles of legal certainty, res judicata and the foreseeability of the law.

Equality before the Law

The third sub-rule is that “laws of the land should apply equally to all, save to the extent that objective differences justify differentiation”. This sub-rule is reflected in several different treaties which ensure the prohibition of discrimination and equal treatment. CEDAW, CERD and the CRPD each outline granular protections of equal treatment regardless of gender, race or disability. As noted in the UN chapter, these treaties make dispensations to account for objective differences related to gender, race and disability. Article 2 of the CERD, for example, allows states to introduce initiatives to redress the long-term effects of discrimination by taking “special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms”. Article 12 of the CRPD requires states to provide specific protections to support disabled people in exercising legal capacity and to put in place safeguards to prevent abuse e.g. through undue influence.

Fundamental Rights Protection

The fourth sub-rule that “the law must afford adequate protection of fundamental human rights” is closely related to the eighth sub-rule, which requires “compliance by the state with its obligations in international law”. The requirement to comply with obligations is reflected in the principle of pacta sunt servanda, which is considered a general principle of international law according to the Vienna Convention on the Law of Treaties. It is reflected in different international human rights law treaties, such as Article 1 of the European Convention on Human Rights, which states “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”. This sub-rule requires that the obligations are complied with in good faith and this is where the linkage to ensuring adequate fundamental rights protection in the fourth sub-rule arises. At a general level, the fourth sub-rule is linked to the obligation to fulfil discussed in the Socio-economic Rights Chapter, which permeates different rights. More specifically, this sub-rule is reflected in Article 2(2) of ICCPR

Adequate protection is also ensured by the right to an effective remedy which is reflected in several human rights treaties e.g. Article 2 ICCPR, Article 13 ECHR and what is framed as a right to judicial protection in Article 25 of the ACHR. Thus, we can see a requirement for states to adopt domestic laws, particularly effective remedies is viewed as an important part of discharging their obligations under International Human Rights Law treaties in good faith.

Access to Courts

The fifth sub-rule states that “means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve”. The obligation to fulfil is again engaged here and states have a general obligation to put in place administrative and legal frameworks to ensure adequate protections of the rights in different treaties. The principle that people must be able to submit civil disputes to a judge for determination is recognised as a fundamental principle of law. As the ECtHR noted in Golder v UK, “one can scarcely conceive of the rule of law without there being the possibility of having access to the courts”. The issue of speed is dealt with in many treaties, the right to judicial protection in Article 25 of the ACHR demands “prompt recourse” to a competent court or tribunal. Article 6 of the ECHR provides for determination of civil rights and criminal charges “within a reasonable time”. It is not uncommon for litigation challenging delays in the judicial system to be brought before the ECtHR (see for example McFarlane v Ireland).

While challenges to the prohibitive costs of resolving disputes are less common, the subject has also been litigated before human rights bodies. In a landmark case at the ECtHR of Airey v Ireland, the applicant challenged the prohibitive cost of litigation arguing it prevented her from bringing proceedings before the High Court for the purpose of petitioning for judicial separation and violated her right to access a court under Article 6. While the court held that Article 6 does not imply a duty on the state to provide free legal aid in all disputes relating to a civil right, the state may sometimes be required to provide for the assistance of a lawyer when such assistance proves indispensable to guaranteeing effective access to a court. Subsequent case law such as Postupkin v Russia and Steel and Morris v UK have elaborated on the conditions where legal aid is required to be provided by the state.

Fair Procedures

The sixth sub-rule is also closely related to the seventh sub-rule, which requires that “adjudicative procedures provided by the state should be fair”. This sub-rule supplements the requirement to provide access to courts in the fifth sub-rule by ensuring that once a party gets to court, the procedures are fair and the decisions are made independently and impartially. There are many elements to this, including that the parties have access to documentation relevant to their claims, that the representations of the parties are duly considered by the court and that some equality of arms between the parties is guaranteed (see the discussion of legal aid above). It is specifically reflected in protections of the right to a fair trial (e.g. Article 14 ICCPR, Article 6 ECHR) and the prohibition on retroactive punishments (e.g. Article 15 ICCPR and Article 7 ECHR).

Acting Intra Vires

The seventh, and final, sub-rule discussed here, is that state agents “must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers”. This is a very wide-ranging rule reflected in several different human rights law provisions. The obligation to investigate deaths implicit in the right to life in the ICCPR and the ECHR offers an instructive example where human rights jurisprudence has created a range of requirements for state agents concerning investigations that ensure investigators act reasonably and in good faith. General Comment No.36 of the Human Rights Committee outlines these provisions in detail. It requires authorities to act of their own volition in investigating once a death or life-threatening injury is brought to their attention (see also Ergi v Turkey ). Investigators must follow relevant lines of inquiry, including any possible legal responsibility of superior officials. They are required to cooperate in good faith with international mechanisms of investigation and prosecution. Investigations must be effective in the sense that they must be capable of leading to the establishment of the facts and, where appropriate, the identification and punishment of those responsible (see also Ogur v Turkey). The authorities must also take “reasonable steps available to them” within the law to secure evidence e.g. witness statements, forensic evidence, autopsy, records of injury etc. (see also Edwards v United Kingdom).

Universality

Human rights are often said to be universal. Universality is a central idea in the UDHR and a foundational principle of the international human rights system. Universality indicates that rights apply to all regardless of who they are and where they live. They are a universally agreed and accepted concept. However, there are many critiques of human rights that challenge this foundational idea. Two critiques relating to the idea that human rights are largely influenced by Western Liberal moral values during the time when there was still widespread colonialism are considered below.

Cultural Relativism

Cultural relativism is sometimes suggested to be the opposite of universalism. It is the idea that we derive our morals and understandings of what is right and wrong from the culture we grew up in and live in. This then means our reactions to certain behaviour is informed by these cultural morals, not whether one way of doing something is better than another. In this context, practices condemned in the West, but widespread in other parts of the world may be given as examples of where international human rights law seeks to impose Western values on other cultures. For example, judicial corporal punishment, and female circumcision would be uncommon in Western liberal democracies, but in some states, these would be considered morally accepted cultural and legal norms.

More recently, cultural relativism has manifested in debates about Islamic dress. Several European countries have introduced bans on wearing burqas in public. The bans are often presented as being motivated by a desire to prevent the oppression of women, however, it has been demonstrated that many Muslim women choose to wear the burqa themselves; they are not forced to wear it. A challenge to the French law in the ECtHR was found not to violate the rights in the ECHR, but the UN Human Rights Committee did consider the ban to violate rights under the ICCPR. This diversion in approaches by the two human rights bodies shows how very similar human rights provisions can be interpreted in different ways, especially when cultural norms and morals are involved.

One of the sources of claims of cultural relativism is that the West dominated international law and international relations between the 1940s and 1970s when the UDHR, ICCPR and ICESCR were drafted. During the drafting of the UDHR the UN contained only a small number of African and Asian countries. However, the subsequent drafting of the ICCPR and ICESCR, involved greater numbers of states from the Global South. Similarly, during the drafting of CEDAW, delegates from many states engaged in the process, including Muslim states, not just as passive observes but active participants. After the drafting of the UDHR, involvement of states beyond the West has increased. During the drafting of more recent treaties, such as the UN Convention on the Rights of Persons with Disabilities, third sector organisations and people with disabilities from the global south have been involved in drafting processes.

As indicated above, cultural relativism is seen as the opposite of universalism. On one hand, arguing for absolute universalism would mean ignoring cultural differences and potentially prioritising Western values over others, which is not desirable. On the other, adopting an entirely cultural relativist position would mean that no practice, no matter how abhorrent, could be condemned, if it was considered an established cultural practice. As Dembour asks whether a person “who faces execution in a dictatorial state would accept that the fact that they are from a non-Western culture invalidates their claims for human rights protection?” Cultural relativism should not be a shield to immoral situations, that may be considered established cultural practices.

Such a scenario also highlights some valid questions as to who is claiming something is a cultural practice, if this is the opinion of all of those in a state, and do they have vested interests in claiming something is a cultural practice. In a dictatorial state, in the example Dembour uses, it may be that a small number of ruling elite want to maintain the practice, and most of the population are opposed to it. It would also likely be the case, that the ruling elite want to keep practices that might be prohibited under international human rights law, such as the death penalty and TIDT to help maintain their control and rule of the population. Failing to look beyond claims of something as a cultural practice may leave many people vulnerable to practices with which they do not agree and that violate their human rights.

Post-Colonialism

Postcolonialism considers the continuous effect of colonialism. It considers how the history of colonialism and decolonisation continue to shape international structures and organisations. Given the wide and dispersed nature of European colonialism, the variety and locations of these impacts are numerous. This also results in numerous approaches to postcolonial theories and the critique that they can erase the experiences of specific groups of people.

Human rights are often described as starting with declarations in the late 18th Century in the West. The idea of the rights of man described in documents such as the American Declaration of Independence and subsequent Bill of Rights and French Declaration of the rights of Man are examples of such declarations. However, the ‘man’ and the attributes he needed to avail himself of these rights would be a male landowner. The rights described in these documents were not universal or available to most in Europe or the countries that they colonised.

Although the UDHR and subsequent human rights documents emphasised the universality of application of the rights they contain, as discussed above, there was little diversity in the states the drafters were drawn from and no contribution of those that were colonised at the time or from indigenous people from countries such as the USA and Australia. It is also notable that the UDHR does not directly mention colonialism and the need to end it. However, it is not just the origins of the international human rights movement that attract criticism. Makau wa Mutua has argued that international human rights, although not necessarily intentionally, are set up to encourage governance and ideology aligned with Western liberal democracies. However, the African Charter of Human and People’s Rights has been described as a “post-colonial human rights framework.'” It addresses some of these concerns through express mention of colonialism in Article 20. In addition, the focus on people’s rights, peace and “taking into account the importance traditionally attached to these rights and freedoms in Africa,” suggest an approach addressing post-colonial critiques of human rights.

Proportionality

Rights may need to be balanced or limited for pursuit of a number of legitimate aims of a state. For example, one person’s right to free speech may be limited to protect the privacy of another.  During the Covid-19 pandemic, in many countries people’s freedom of movement and association were limited by states to try and limit and resolve a public health emergency. States may also limit the right of people to protest to protect others from violence or from being the target of hate speech. In such situations, several national constitutional courts (South Africa, India, German, Israeli and Canadian for example) will consider such the legality of such measures with a proportionality review. This approach has also been adopted by the ECtHR, the ACtHR and the African Commission on Human and People’s rights. It has also been applied to some extent by the Human Rights Council, but without explicit mention of the principle.

A proportionality enquiry considers a measure that has been introduced by a state that places limits on a human right. The enquiry will usually begin by considering if that right can be infringed and if so, whether it is being infringed for one of the reasons that is permitted by law. For example, Article 8 ECHR can be interfered with by a public authority for a list of reasons stated, including the “interests of national security” and “protection of the rights and freedoms of others.” Once this is established the state that it is rationally linked to the legitimate aim it is trying to achieve, the necessity of the measure and if it is the least restrictive measure that could be introduced to achieve that aim and finally the balance between the benefit gained and the impact on the right.

Proportionality in the Inter-American Court of Human Rights

Proportionality is a prominent feature of the Inter-American Human Rights System (IAHRS). Article 30 of the ACHR indicates that restrictions of the rights within the Convention cannot be applied “except in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which restrictions have been established.” Article 32 also acknowledges that the rights of individuals are “limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society.” Although not mentioned specifically in the ACHR, the IACtHR has developed a proportionality test based on three principles: suitability, which requires that the measure must be capable of achieving a legitimate aim, necessity, which requires that the measure is no more restrictive than needed to achieve the aim, and the proportionality test in the strict sense, which requires that the benefit of achieving the legitimate aim must outweigh the harm to the right affected. In Kimel v Argentina, a journalist named Eduardo Kimel was convicted of criminal defamation after publishing a book that was critical of a judge’s handling of a historic human rights case. He was sentenced to a year in prison and was fined. The Inter-American Court ruled that Kimel’s criminal conviction constituted a violation of his right to freedom of expression. Applying the principle of proportionality, the Court emphasized that the criminal sanctions imposed were not necessary in a democratic society and had a chilling effect on journalistic freedom. It underlined that civil remedies were available and sufficient to protect reputation without resorting to criminal punishment. The court also found that the imposition of such criminal sanctions disproportionately limited the availability of public interest information.

Proportionality in the European Court of Human Rights

Articles 8 to 11 of the ECHR list the reasons that each of the rights in those Articles can be infringed or limited. The limitation must also be necessary in a democratic society. This requires the State to demonstrate that the limitation is addressing a pressing social need and is doing no more than necessary to address that need. The proportionality test applied by the ECtHR establishes if the limitation is doing no more than necessary to address the pressing need. As the European Court of Human Rights observed in Silver and other v UK

Margin of Appreciation

The margin of appreciation recognises that states are likely to be in a better position to assess the content and necessity of measures taken (see Handyside v UK).

The margin of appreciation is also related to the principle of subsidiarity; that the institutions of the Council of Europe are secondary to national legal systems. This means the primary responsibility for securing the rights contained in the ECHR lies with the state parties. The margin of appreciation helps clarify this role and facilitates the interference of a supranational court in domestic legal issues. The ECtHR is not setting constitutional rules for all member states, but considering limitations on rights implemented by states and where possible acknowledging they may be better placed to judge whether it is necessary.

The narrowness of the margin of appreciation varies with the right being limited and the nature of the other rights it is being balanced against. In areas such as morality, where there is often no consensus about moral values, states are granted a wide margin of appreciation. In Handyside v UK, a decision about whether a book could “deprave and corrupt the morals of the young.” The ECtHR emphasised that state authorities are best positioned to decide on the prevailing conception of morals in that state. States will also be allowed a wide margin of appreciation in relation to national security, as well as cases where there is no European consensus on the issue in the case.

Further Reading

Oddný Mjöll Arnardóttir, ‘Rethinking the Two Margins of Appreciation’ (2016) 12 European Constitutional Law Review 27

Paolo G Carozza, ‘Human Rights, Human Dignity, and Human Experience’ in Christopher McCrudden (ed) Understanding Human Dignity (British Academy 2013)

Kimberlé W. Crenshaw, ‘Race, Gender, and Sexual Harrassment’ (1992) 65 S. Cal. L. Rev. 1467

Jeremy Waldron, ‘The Rule of Law and the Importance of Procedure’ in James E Flemming (ed) Getting to the Rule of Law: NOMOS L (OUP 2011) 

Suggested Citation – Stuart Wallace and Clare James, ‘Core Principles of International Human Rights Law’ in Stuart Wallace and Clare James (eds), Open Access International Human Rights Law (University of Leeds, 2026)