Dignity Rights for a Pandemic

Abstract

The concept of human dignity means, quite simply, that every person has inherent equal worth. This incontrovertible but profound concept is derived from the body of dignity law that has developed since the end of World War II at the international, regional, national, and subnational levels, where dignity has become the central axis around which law rotates.

Both the UN Charter and the Universal Declaration of Human Rights confirm the foundational place of the recognition of human dignity in the building of the new postwar world order. Advancing human dignity also is a central premise of the binding International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, and virtually all subsequent instruments addressing human well-being. The right to dignity is guaranteed by the national constitutions of more than 160 countries.

Further, courts around the globe have applied the right to dignity thousands of times in cases involving issues that matter everyday to everyday people, including involving poverty, employment, marriage, adoption, incarceration, education, safety, health, discrimination, immigration, and police brutality, and many more. The pandemic wrought by Covid-19 has tested the boundaries of dignity’s role under the of law. Millions are infected. Hundreds of thousands have died. Nations have closed their borders. People are quarantined, desparate, and desparing, leading to social and economic dislocation not seen since the Great Depression.

This article highlights the normative and legal dimensions of dignity, and how taking account of dignity under law can improve outcomes during the pandemic. It theorizes that, while not a cure, recognizing dignity under law can be therapeutic in these troubling times.

Introduction

The concept of human dignity means, quite simply, that every person has inherent equal worth. Dignity is a fundamental attribute of human existence, recognized for as long as the capacity to reflect has existed, across continents, countries and cultures. It’s Ubuntu and the Golden Rule. It’s decency, respect and civility. It shows our better angels. But what can be overlooked is that dignity is also law across time and all across the globe, including the modern era. Further, courts around the globe have applied the right to dignity thousands of times, in cases involving issues that matter everyday to everyday people, including involving poverty, employment, marriage, adoption, incarceration, education, safety, health, discrimination, immigration, and police brutality, and many more. Conflict, disasters, and crises test human capacity for recognizing the equal dignity of everyone, everywhere, always.

The pandemic wrought by COVID-19 is, unfortunately and tragically, one such test. Caused by a virus, SARS-Cov-2, from the coronavirus family, the disease COVID-19, which has assumed pandemic proportions, is changing the world in countless ways. It has infected countless and caused hundreds of thousands if not millions of premature deaths worldwide. ¹ Fear has taken hold.

Living in a way that takes account of human dignity can help to quell this fear. Dignity is the most complicated of concepts, and yet simple and pure: the equal and inviolable worth of every human being who has ever lived and who ever will live. As a normative matter, it is inviolable and inherent, like a coin that we are given at birth that we carry with us throughout our lives and can never lose. ² The recognition of dignity is important because dignity is the foundation of humankind’s highest aspirations: peace, freedom, the rule of law, and social progress. Simply, recognizing dignity is a good idea.

But it is also more than a good idea: Dignity is law. ³ While human dignity appeared sporadically in constitutions in the early 20th century, it burst on the legal stage in the early dawn of the postwar era, with the internationalization of peace-building efforts manifested first in the creation of the United Nations and in the declarations of rights that would soon follow. Both the UN Charter and the Universal Declaration of Human Rights (UDHR) confirm the foundational place of the recognition of human dignity in the building of the new postwar world order: that reaffirming faith “in the dignity and worth of the human person” ⁴ and recognizing “the inherent dignity of all members of the human family is the foundation of freedom, justice and peace in the world.” ⁵ Even more significant, though, is the way the drafters of the UDHR instantiated dignity in the first substantive article of the document: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” ⁶ Dignity, the UDHR succinctly suggests, entails using our reason to make conscientious choices to recognize the equal dignity in others.

Ambiguity about the relationship between dignity and rights continues when we see how dignity is represented in law: although it was mentioned in a few prewar constitutions, it was not until after the UDHR that it wended its way into human rights law and discourse at the international, regional, and national levels. Now, dignity has become an elemental part of most international human rights instruments, including conventions to protect children, indigenous people, and to protect all peoples from torture and discrimination, among others; in the regional human rights documents in Africa, Europe, and the Americas; and in more than 160 constitutions around the world, ⁷ “sometimes as a right, sometimes as a value, sometimes in ways that make it hard to distinguish between the two.” ⁸ Where it is not an actionable right—and in some places where it is—it has been read into the constitutional foundations by courts in countless decisions from all regions of the world in all legal and cultural traditions. ⁹ And in the United States, it has recently been adopted by the American Bar Association—representing the nation’s 400,000 lawyers—as the foundation of a “just rule of law.” ¹⁰ And yet, it remains a challenge to define what it means for the pandemic a question this essay aims to address.

How can dignity under law serve our collective better angels during the pandemic? In the United States, attempts to contain the infection have led to quarantine, global lockdowns, closed borders, dislocated families, shuttered businesses, emptied airlines, airports and other constituents of travel, and vast social distancing across all sectors of society. As of this writing, there is no vaccine or cure and treatments of dubious effectiveness. Testing is unavailable to most, and results unreliable regardless. Hospitals and health care systems and workers are overwhelmed if not overwrought. Plans for schools, restaurants, bars, and businesses changes daily. Health workers are putting their lives on the line. Many of those infected are sitting ducks, cordoned in elderly care facilities, prisons, and hospitals. Foreigners are blamed. Each and every pandemic-induced tremor and aftershock tests the bounds of human dignity as a value and as a right.

Parts I and II highlight normative and legal dimensions of dignity, respectively. Part III provides examples of how taking account of dignity under law can improve outcomes during the pandemic.

I. Dignity Values

Dignity matters. But what does it mean? In our view, human dignity has four essential qualities. As we have written elsewhere:

• First, each person—every member of the human family—has value; no one can be dismissed, ignored, mistreated, or abused as if their humanity means nothing. Dignity means that each person’s humanity means something and has worth. Each person has a right to live as if his or her life matters and to be treated ‘as a person’. ¹¹

• Second, each person’s worth is equal to every other person’s. No one’s life is more important than any other person’s. If each person’s right to agency, to self-development, to choose one’s life course is the same as every other’s, then no one can determine another person’s choices, treat another as an object, or treat a person as if his or her life does not matter. Despite our differences, in our humanity, we are all equal. It is in dignity that we are united. ¹²

• Third, dignity inheres in the human person. The Universal Declaration of Human Rights defines the scope in time and space: it applies to every person ‘born’ into ‘the human family.’ ¹³ It requires only birth—not the granting or conferral of dignity by someone with greater dignity (which of course would be impossible given the equality of dignity). This is critically important for understanding dignity’s relationship to law: human dignity transcends positive law; it exists whether law or other conditions recognize it or not. It thus can stand as a measure of the justness of law or of a legal regime. Dignity also exists regardless of the conditions in which people live: pollution, poverty, discrimination and so on threaten the ability to live with dignity, but human dignity remains inviolable and inherent in the human person.

• Fourth, dignity is universal; it applies to every ‘member of the human family,’ wherever and whenever they live. It thus implies within it a principle of intergenerational equity: if those who are born after have the same dignity ¹⁴ that we have, then they are entitled to the same (or better) living conditions, which necessitates an environmentally sustainable planet. ¹⁵

Every person who has ever been born or whoever will be born has the same quantum of dignity. We don’t need to prove our worth or our reason or be smarter or more conscientious than someone else. We just need to be born, and human dignity attaches, with the cutting of the umbilical cord, and the development of the ability to reason. With reason comes the capacity to choose, and to choose between good and bad, right and wrong. So the capacity to reason is intimately linked with the capacity for conscience. And that, in turn, is intimately connected to how we act toward one another: whether we treat others in our communities as brothers and sisters—impliedly, as our equals in worth—or whether we treat them as aliens or enemies, of greater or lesser value than us.

At what point in the evolution of humanity could we say that human dignity came into being? Who got the first coin? When humans started to use language and communicate in groups? Began to be self-reflective? To act intentionally? Dignity is tied to reason and conscience, not just to the ability to reason but to the capacity to think about oneself, the capacity for reflection and self-reflection. And to the capacity to project oneself into one’s future and the propensity to make plans for oneself. Thus, dignity is tied to language and communication, that is even as dignity is inherent in the thinking human person, its significance lies in its ability to link a person to their community. ¹⁶ This is where law enters the scene.

II. Dignity under Law

What does the law have to say about dignity? Is there a right to human dignity? Importantly, dignity itself is not a right. It is a human quality. And yet, it is also closely connected to rights, although their exact relationship is not explained in the Universal Declaration of Human Rights: dignity is the source of rights—the foundation of peace, justice, and freedom in the world, the twin of rights (every person is born equal in both). But it is also the purpose of rights, the reason why the protection of human rights is so important the world over: we protect rights in order to ensure human flourishing.

A. Dignity Rights

The curious connection between dignity and rights may not be precisely defined, but it is no less real. In one version, dignity instantiates rights. Certain rights flow from the fact of the recognition of human dignity; in some conception, the very fact of rights flows from it. Hannah Arendt’s famous formulation about the ‘right to have rights’ ¹⁷ goes to the heart of it. Although

it is clear from her body of work that she is not especially focused on the term or concept of human dignity as a right, a meta-right or even an important value that deserves philosophical treatment, [it] is also clear both from the few mentions she makes of dignity that her sense of what drives the right to have rights, what justifies it and makes it real and true, is the fact of human dignity. ¹⁸

Here, dignity is not a right, and does not represent an entitlement to any particular thing; rather, it represents the right to claim rights themselves—the right to participate in a political community that guarantees to each person the ability to engage on an equal footing on community decision-making.

As we will see, the postwar burgeoning of international human rights law rests on the foundation of human dignity, as if to say that once we know dignity, we must assure (to paraphrase Hannah Arendt), that people have the right to have and to claim rights that will protect their dignity. But what are these rights?

B. Foundations of Dignity under Law

Dignity is deeply rooted in modern law. We see from the UN Charter that “faith” in the worth of the human person is either on the same footing as or necessary to accomplish the UN’s paramount aim of ending the “scourge of war.” ¹⁹ Three years later, in the American Declaration of the Rights and Duties of Man and in the Universal Declaration, human dignity would be recognized as essential to “peace, justice, and freedom in the world.” In both global instruments, dignity would be seen as galvanizing “social progress and better standards of life in larger freedom.” ²⁰

As mentioned, the UDHR provides that “All human beings are born free and equal in dignity and rights." ²¹ The UDHR’s second invocation of human dignity incorporates the UN Charter and gives it a purposive spin:

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom.

Better standards of life in larger freedom could itself provide a definition of human dignity. And, indeed, the current motto of the United Nations is “Peace, Dignity and Equality on a Healthy Planet.”

Dignity is in fact so essential to the promise of the human rights enterprise that it is recognized in the common provisions of both international covenants, which begin by “Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,” and by “Recognizing that these rights derive from the inherent dignity of the human person. . .” ²² It has, moreover, found its way into human rights instruments protecting children, ²³ Indigenous people, ²⁴ women, ²⁵ and migrants. ²⁶ Indeed, the Human Rights Committee’s General Comment 36 asserts that the right to life protected in the International Convention on Civil and Political Rights is the right to live with dignity:

The right to life is a right which should not be interpreted narrowly. It concerns the entitlement of individuals to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death, as well as to enjoy a life with dignity. ²⁷

In this Comment, as elsewhere, the international community has recognized that the ability to live with dignity depends on a healthy and safe environment. The 1972 Stockholm Declaration, which marks the beginning of global environmental law, recognized the “fundamental right to freedom, equality, and adequate conditions of life, in an environment of quality that permits a life of dignity and well-being.” ²⁸ More recently, the Human Rights Committee explained that

[i]mplementation of the obligation to respect and ensure the right to life, and in particular life with dignity, depends, inter alia, on measures taken by States parties to preserve the environment and protect it against harm, pollution and climate change caused by public and private actors. ²⁹

The theme of dignity as elemental to human rights law is echoed in the regional human rights instruments as well. As seen, Latin America was first to the table with its Declaration—seven months before the UDHR—asserting 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 man and the creation of circumstances that will permit him to achieve spiritual and material progress and attain happiness. . . ³⁰

The Charter of the (now replaced) Organization for African Unity expressed the same idea in affirming that: “the Charter of the Organization of African Unity, which stipulates that freedom, equality, justice and dignity are essential objectives for the achievement of the legitimate aspirations of the African peoples” ³¹ and the African Charter for Human and People’s Rights affirms that “Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status.” ³² And in Europe as well, dignity is fundamental. The Charter of Fundamental Rights of the European Union begins, in Title 1, Article 1 with the simple assertion that “Human dignity is inviolable. It must be respected and protected” ³³ and then proceeds to explain in the rest of the first title that dignity entails the right to life, the right to the mental and physical integrity of the person, the prohibition against torture and forced labor and slavery. ³⁴ While not binding as a matter of either national or international law, it is instructive that the American Bar Association in 2019 recognized human dignity as the foundation of a “just rule of law.” ³⁵

C. Reflecting Dignity in Law

While these foundations of dignity in law have enormous normative and expressive authority, and while they are technically binding on the states that are parties to them, they do not have as much effect on the day-to-day lives of most people because they are virtually unenforceable. ³⁶ The real revolution in dignity rights has taken place as the concept of dignity spread into the constitutions of nations around the world: more than 160 national constitutions currently include references to dignity, and all constitutions adopted in the last few years have done so:

The overall average of the enactment year of the 31 national constitutions that do not mention dignity is 1972. The average enactment year of constitutions that do mention the term once is 1986. Those mentioning the term twice have an average enactment year of 1993, and those that mention it three times have an average year of 1994. Constitutions in which the term appears between four and seven times have an average enactment year of 1997. Finally, constitutions with eight to fifteen appearances of the term dignity have an average enactment year of 1999. In other words, dignity appears more frequently in more recent constitutions. ³⁷

And once it is seen in constitutions, it is ripe for interpretation and application by courts. By now, courts have decided thousands of cases around the theme of human dignity. This global jurisprudence is remarkable in a number of ways. As we’ve described in a forthcoming casebook on dignity law [Daly and May, Dignity Law: Global Recognition, Cases, and Perspectives (W.S. Hein 2020], first, it is global, with cases arising in all continents, in all regions, and in legal and cultural traditions: secular nations like India and, nations that identify as Islamic such as Pakistan, nations that identify as Jewish such as Israel, as well as those that invoke God generally, such as Colombia, Germany, and South Africa, all have developed rich bodies of law asserting the primacy of human dignity. Second, courts have found that dignity is relevant to the full panoply of human rights, thus demonstrating the indivisibility of all rights, including social and economic rights (including health, shelter, food security, and income) as well as civil and political rights (including speech, voting, and association). Courts have found it relevant to specific segments of a population such as criminal defendants, inmates, patients, elderly people, and children but also to every human being within the polity. ³⁸ But third, despite this expansive reach and range, the central meaning of human dignity is remarkably consistent across the jurisdictions. The cases thus reflect a very strong overlapping consensus about the central meaning of dignity under law.

The global consensus could stem from the fact that dignity jurisprudence is not about the scope or definition or application of specific rights to specific factual contexts. Rather, it is about something we all agree on: “what it means to be human in the 21st century.” ³⁹ The global caselaw describes the needs of humans, and therefore it describes what sovereign states must secure or protect. It is therefore from the caselaw that we draw inspiration for the meaning of dignity, and the application of dignity as a legal right in people’s lives.

III. Dignity and Law in the Time of COVID-19 ⁴⁰

The United States leads the world in COVID-19 infections and deaths. ⁴¹ More than one-half of the U.S. population has been subject to stay-at-home orders. ⁴² Unemployment has reached levels not seen since the Great Depression. ⁴³

The pandemic also reveals pressure points in the U.S. legal system, upending the legal industry, forcing firms to cut salaries, lay off attorneys, and make changes to summer associate programs. ⁴⁴ “Zoom” trials are becoming commonplace, raising new constitutional concerns. ⁴⁵ The impact on legal education promises to be profound. ⁴⁶

COVID-19 has laid bare the consequences of the lack of social safety nets in the United States. The United States lacks universal sick leave, health or child care, universal paid family leave, safe collective bargaining, or recognized constitutional rights to health care, education, safe working conditions, or a living wage. The sections that follow engage some of the ways that COVID-19 affects dignity in law and society.

A. Dignity, Employment and COVID-19

The ability to earn a living and be treated with dignity while doing so are central tenets of human dignity. Nelson Mandela put it this way:

Decent work is based on the efforts of personal dignity, on democracies that deliver for people, and economic growth that expands opportunities for productive jobs and enterprise development. Decent work also underpins the principle that the purpose of creating work/wealth is to eradicate poverty. Decent work is about the right not only to survive but to prosper and to have a dignified and fulfilling quality of life. This right must be available to all human beings. ⁴⁷

The UDHR recognizes the role of employment in three ways, first by providing that “the right of everyone to the opportunity to gain his living by work which he freely chooses and accepts,” ⁴⁸ second, by recognizing “the right of everyone to the enjoyment of just and favourable conditions of work,” ⁴⁹ and third, by declaring that “everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of their interests.” ⁵⁰ Moreover, the UDHR recognizes universal “brotherhood” and rights to assistance for the unemployed. ⁵¹

The International Labour Organization estimates that the pandemic will likely result in job loss for 1.6 billion workers in the informal economy—nearly half of the global workforce, and more than 300 million full-time jobs. ⁵² Unemployment in the United States nears 20 percent, a level not seen in nearly 90 years—with 50 million people filing jobless claims. ⁵³

Job losses can have severe effects on human dignity, beginning with the loss of the ability to earn a living, compounded by the lessening or loss of ability to care for loved ones. This in turn can damage physical and psychological health, and result in increased the risk of cardiovascular disease, depression, loss of familial and social bonds, domestic violence, and suicide. ⁵⁴ And to top that off, most workers rely on employers to provide or support health care. Unfortunately, most workers in the United States lack collective bargaining protections that might otherwise thwart unfair or abusive dismissal. ⁵⁵

Dignity to work is supplemented by how to be treated, that is, dignity at work. Indeed, it is through workers’ rights and working conditions that for many concepts of human dignity is most salient. ⁵⁶ The workplace can be a place for reflecting and advancing dignity, and policies should “focus on the dignity and well-being of workers.” ⁵⁷

Yet realizing dignity at work faces myriad challenges. Discrimination of any sort in the workplace results in a “significant injury to the victim’s dignity[.]” ⁵⁸ This is manifested inter alia in wage discrimination that exacerbates insults to dignity. For every dollar earned by full- and part-time white male wage workers in the United States, white women earned eighty-two cents, African American men earned seventy-three cents, Hispanic men earned sixty-nine cents, African American women earned sixty-five cents, and Hispanic women, fifty-eight cents. ⁵⁹ Lastly, privacy privations diminish dignity. Data show that most employers readily and regularly monitor outputs such as keystrokes and bathroom breaks as well as content of emails and other forms of communication, ⁶⁰ all of which contributes to workplace stress. ⁶¹ The effects of COVID-19 on such things are yet to be fully understood.

B. Dignity, Immigration, and COVID-19

Immigration and emigration are the result of complex factors, including pursuit of educational or economic opportunity, fear of persecution or prosecution, or reuniting with family members, all of which implicate dignity. Immigrants are inherently “others” who are invariably subject to what can feel like an endless array of objectifying experiences of investigations, applications, registrations, judicial proceedings, and other dehumanizing governmental restrictions, requirements, processes, and backlog. Governmental policies or actions can diminish dignity doubly by “proliferat[ing] anti-immigration sentiment, defamatory hate speech, and racist remarks.” ⁶² The U.S. Supreme Court has not been oblivious to the dignity-diminishing attributes of immigration, noting how immigrants are often viewed as “less desirable than American citizens,” but nonetheless entitled to “dignity and respect accorded to other persons.” ⁶³

Dignity is especially threatened for those seeking to immigrate outside the bounds of applicable legal processes. For example, because deportation is a civil rather than a criminal matter, “most protections contained in the Bill of Rights are not available in removal proceedings,” including a right to counsel, to an expeditious hearing, and to a trial among peers. ⁶⁴ The U.S. Constitution otherwise guarantees access to an attorney for individuals charged with felonies, or crimes that could lead to their incarceration. ⁶⁵

Deportation also diminishes dignity by tearing families apart. The right to family life is recognized and entrenched in international law and the law of nations virtually worldwide. The ability to shape one’s family, including whether to have children, how to raise them, and where and how to live are core elements of subjective dignity:

One the most basic elements of human dignity is the ability of a person to shape his family life in accordance with the autonomy of his free will, and to raise his children within that framework, with the constituents of the family unit living together. The family unit is a clear expression of a person’s self-realization. ⁶⁶

The COVID-19 pandemic has exacerbated the dignity-diminishing attributes of immigration. The United States, for instance, first banned travel to or from China for non-U.S. citizens or residents, and then elsewhere, before imposing a moratorium on immigration altogether. It then effectively discontinued asylum at U.S. land borders by invoking the power to block the entry of foreign nationals potentially posing a public health risk. And then it closed its borders altogether to nonessential travel—the first time such action has been taken. ⁶⁷

C. Dignity, Criminal Justice, and COVID-19

Dignity has played an important role in the treatment of the charged, convicted, and incarcerated. Indeed, mistreatment of prisoners informed Kant’s opposition to the objectification of human beings in the first place. ⁶⁸ Articles 6–11 of the UDHR encourage procedural and other protections for criminal defendants, including rights to counsel, speedy trial, and against self-incrimination. ⁶⁹

In the United States, the incarcerated population has quintupled to 2.2 million since 1980, or nearly one 1 out of 100, with nearly 11 million people entering or leaving jail every year, raising dignity issues from arrest through release. ⁷⁰ Human dignity is especially trenchant under the Eighth Amendment, which forbids “cruel and unusual punishment.” For example, in Trop v. Dulles ⁷¹ —regarding whether revoking citizenship as punishment for desertion during wartime comports with the Eighth Amendment—a plurality of the U.S. Supreme Court observed that “[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man.” ⁷² In Roper v. Simmons, the Court observed that the Eighth Amendment “reaffirms the duty of the government to respect the dignity of all persons,” ⁷³ and in Kennedy v. Louisiana, as “express[ing] respect for the dignity of the person.” ⁷⁴

Dignity plays an especially important role in capital punishment cases. In Gregg v. Georgia, the Court noted that dignity is an important factor in determining whether capital sentencing procedures are consistent with the proportionality requirement of the Eighth Amendment.” ⁷⁵ In Trop v. Dulles, the Court affirmed that “punishments would be unconstitutionally cruel—in other words, contrary to human dignity—if they were disproportionately severe when compared to the gravity of the crime in question.” ⁷⁶ And in Furman v. Georgia, ⁷⁷ the Court reasoned that “the deliberate extinguishment of human life by the State is uniquely degrading to human dignity.” ⁷⁸ The Court observed that the

true significance of these punishments is that they treat members of the human race as nonhumans, as objects to be toyed with and discarded. They are thus inconsistent with the fundamental premise of the [Eighth Amendment] that even the vilest criminal remains a human being possessed of common human dignity. ⁷⁹

Justice Scalia for one noted that the autonomy of those subjected to the criminal justice system is tantamount to “the supreme human dignity of being master of one’s fate.” ⁸⁰ And in dissent in a decision rejecting a criminal defendant’s claim of ineffective assistance of counsel, Justices Brennan and Marshall complained, “today’s ruling denigrates the values of individual autonomy and dignity.” ⁸¹ Yet jails and prisons are incubators for COVID-19 because social distancing is impossible.

But criminal justice officials have the power to prevent coronavirus deaths. Jails and prisons also house large numbers of people with chronic diseases and complex medical needs who are more vulnerable to COVID-19. Reducing overcrowding can help. ⁸² Nonetheless, the U.S. prison population remained nearly unchanged in the early months of the year, decreasing by just 1.6 percent from January through March. And while prison populations have decreased in some states, it increased in at least five others. ⁸³

D. Dignity, Domestic Violence and COVID-19

Dignity is a constant consideration in family life, including decisions about who or what constitutes one’s family, whether and how to have children, marriage, divorce, domestic violence, and ancillary issues. ⁸⁴ The UDHR provides that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence.” ⁸⁵

However, not all marriages are dignified. The worldwide lockdown during the pandemic is associated with a near immediate increase in reports of domestic violence. ⁸⁶ Protection from Abuse (PFA) orders are orders that sometimes need to be filed by family attorneys on behalf of their client. The PFA process is intended to give relief to a victim from his or her abuser. In 1993, the United Nations adopted the “Declaration on the Elimination of Violence against Women” which identified the urgency of universal application of dignity to women, and affirmed that historically women worldwide were allowed to be treated without dignity, either by culture, norms or even the law. ⁸⁷ PFAs are granted when a person attempts to, or does in fact, cause bodily injury, rape, sexual assault, incest, or aggravated indecent assault. ⁸⁸

E. Dignity and Intellectual Property

The pandemic reveals the importance of human dignity regarding intellectual property; that is, copyrights, trademarks, and patents. Intellectual property protections are deeply rooted in many constitutional systems.

The human dignity implications of intellectual property have long been acknowledged. ⁸⁹ To be sure, the UDHR provides that: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author,” ⁹⁰ a notion echoed in the International Covenant on Economic, Social and Cultural Rights. ⁹¹ Such inventions have contributed to movements for greater sharing of intellectual property—including pharmaceuticals—with the developing world. ⁹²

The COVID-19 pandemic challenges protections afforded intellectual property. For example, new or improved medical devices, syringes, masks, protective clothing or equipment, ventilators, vaccines and treatments, are eligible for patent protection. Concerns about public health and welfare can overwhelm justifications for protection of intellectual property, particular twenty-year-long patent rights.

The COVID-19 crisis has led to calls for the suspension of intellectual property rights in general and patent rights in particular. The World Health Organization recently announced support for a program to create “a repository of information on diagnostic tests, devices, medication or vaccines, with free access or licensing on reasonable and affordable terms, in all member countries of the Organization.” ⁹³ In the United States, the “Facilities Innovation to Fight Coronavirus Act” would suspend any

patent issued for a new or existing pharmaceutical, medical device, or other process, machine, manufacture, or composition of matter, or any new and useful improvement thereof used or intended for use in the treatment of the Coronavirus Disease 2019 (COVID-19) until after the [coronavirus] national emergency . . . terminates. ⁹⁴

In return, the proposed law would extend the term of affected patents for an additional ten years. ⁹⁵

F. Dignity, the Environment and COVID-19

Human dignity and environmental outcomes are inextricably intertwined. Attention to the equal worth of all those involved in environmental outcomes evidences a respect for the human dignity of each person. In recent years, courts have increasingly recognized the links between environmental protection and the enjoyment of human rights, including in particular the human right to dignity. As a conceptual matter, attention to human dignity foregrounds the impacts on human beings of environmental decisions, including decisions that contribute to climate change, and requires courts to address ways in which those decisions diminish the ability of people to manage their own lives, often in ways that disproportionately affect those who are already the most vulnerable and marginalized.

Dignity considerations are inextricably linked to environmental outcomes. As noted, The Stockholm Declaration in 1972 first noted that people should enjoy the “fundamental right to freedom, equality, and adequate conditions of life, in an environment of quality that permits a life of dignity and well-being.” ⁹⁶ In 1989, the Hague Declaration expressly acknowledged “the right to live in dignity in a viable global environment.” And more recently, the UN Special Rapporteur on Human Rights and the Environment stated that: “Human rights are grounded in respect for fundamental human attributes such as dignity, equality and liberty. The realization of these attributes depends on an environment that allows them to flourish . . . Human rights and environmental protection are inherently interdependent.” ⁹⁷

Correspondingly, dignity is a key component of environmental sustainability. The classic definition of “sustainable development” is “development that meets the needs of the present without compromising the ability of future generations to meet their own needs." ⁹⁸ Sustainability has long served as a general principle of international environmental law, including as an interpretive principle in international accords and by international tribunals resolving environmental disputes. ⁹⁹ Sustainabile development is now a common if not ubiquitous feature in legal expressions at the international, national, and subnational levels, culminating in the United Nations setting 17 Sustainable Development Goals (SDGs) to achieve by 2030. ¹⁰⁰ The SDGs include protecting biodiversity; ensuring clean water, air, land, and food; ending poverty, hunger, and discrimination; and providing access to justice and opportunity for the future. ¹⁰¹ The SDGs “are the blueprint to achieve a better and more sustainable future for all. They address the global challenges we face, including those related to poverty, inequality, climate, environmental degradation, prosperity, and peace and justice. The Goals interconnect and in order to leave no one behind, it ís important that we achieve each Goal and target by 2030.” ¹⁰²

The SDGs underscore that advancing human dignity is the core of sustainability by

envisage[ing] a world of universal respect for human rights and human dignity, the rule of law, justice, equality and non-discrimination; of respect for race, ethnicity and cultural diversity; and of equal opportunity permitting the full realization of human potential and contributing to shared prosperity. ¹⁰³

Moreover, the SDGs “[r]ecognize that the dignity of the human person is fundamental . . .”

Accordingly, dignity informs and influences the implementation of myriad SDGs, including water and sanitation (Goal 6), energy (Goal 7), economic growth (Goal 8), infrastructure and industrialization (Goal 9), consumption and production (Goal 12), oceans, seas, and marine sources (Goal 14), terrestrial ecosystems (Goal 15), the role of the rule of law (Goal 16), and global cooperation (Goal 17). In particular, the SDGs underscore the correspondence between poverty, hunger, and dignity: “We are determined to end poverty and hunger, in all their forms and dimensions, and to ensure that all human beings can fulfil their potential in dignity and equality and in a healthy environment,” ¹⁰⁴ and that “[b]illions of our citizens continue to live in poverty and are denied a life of dignity.” ¹⁰⁵

Dignity has found its way into environmental jurisprudence from around the globe. One of the earliest cases to connect dignity and environmental harm is from Nigeria. For example, In 2014 Kenya’s Environmental and Land Court in Nairobi acknowledged that environmental rights must be read in light of the constitutional commitment to human dignity. ¹⁰⁶ The following years would see cases from Nepal, ¹⁰⁷ Pakistan, ¹⁰⁸ and Ireland. ¹⁰⁹ These cases help to illustrate the role that courts can play in recognizing the relationship between dignity and the environment.

COVID-19 has stopped some environmental protection in its tracks, however. In the United States, the Trump Administration appears to be to taking advantage of the pandemic as subterfuge in rolling back or attacking environmental laws and regulations that protect air, water, rare animals, and public health, and will contribute to climate change.

Just as COVID-19 was coming into national consciousness, the administration proposed rule changes to the National Environmental Policy Act to eliminate consideration of climate change, and otherwise shorten public participation and require agencies to complete reviews in far shorter times. And then after lockdowns started, it did the following: ¹¹⁰

• Proposed a regulation to eliminate federal water pollution protections for virtually all but waters that could support human vessel traffic year-round;

• Announced a change to implementing the Migratory Bird Treaty Act to allow the incidental “take” (killing) of millions of birds from more than 1,000 migratory species;

• Declined to strengthen pollution levels for small airborne “particulate matter”;

• Issued a rule to rollback fuel efficiency standards for most motor vehicles;

• Announced it was finalizing a rule to allow coal-fired power plants to emit more mercury into the air, reversing existing rules that had reduced emissions by 82 percent;

• Proposed a rule to prevent the use of epidemiological studies showing links between pollution and human health effects;

• Announced it had stopped inspecting facilities—including factories, power plants, and oil refineries—for non-compliance; and,

• Announced it is suspending enforcement efforts altogether until the pandemic is extinguished.

All of these efforts take a toll on human dignity in general, and communities and people of color in particular. It is estimated the rejected improvement to standards would save 12,200 lives annually, as well as add $190 billion to health-related costs by 2040. Mercury damages lung function and is a neurotoxin, particularly affecting pregnant people, the elderly, the infirm, and young children.

Moreover, climate change is likely to be exacerbated, too. The rollback of the vehicle efficiency standards alone is expected to add 1.5 billion metric tons of greenhouse gases into the atmosphere, an amount equal to the total pollution from 68 coal-fired power plants operating for five years, and cost Americans more than $244 billion in excess fuel charges. This rollback could also ultimately cost nearly 90,000 jobs as well. There is also evidence that exposure to air pollution—particularly particulate matter—is associated with higher death rates from COVID-19.

Conclusion

If dignity law is, about “what it means to be human in the 21st century,” then it will be tested by such dramatic and traumatic events as the global pandemic of 2020 and the consequent economic crisis whose effects will be felt by humanity for years to come. The ability to live with dignity is threatened for people who are homebound or locked down in unsafe conditions, whether in institutional settings like prisons or in private settings where there is abuse or scarcity. It is further threatened for people who can’t avoid contracting Covid-19 because of proximity to others or the unavailability of clean water or soap. And it will be threatened by the shrinking American economy for Americans and for those who depend on public aid or private remittances in order to live in conditions of dignity. The imperative to keep dignity at the center of our legal framework has never in our lifetimes been more important.

Dignity in law doesn’t answer all the questions. It doesn’t tell us whether quarantines should last longer or whether helping people return to work should take precedence. It doesn’t tell us whether younger generations or older generations or future generations should be privileged at the expense of others. Nor does it tell us whether police departments should be defunded, or how. In other words, when multiple dignity claims are at stake, dignity itself doesn’t tell us how to balance. But it does help frame how we should think about the questions. It reminds us that all legal and policy decisions should cherish human life and protect the quality of human life so that all people can live with dignity.

This article has explained the normative and legal dimensions of dignity, and how taking account of dignity under law can improve outcomes during the Pandemic. It has shown that, while not a cure, recognizing dignity under law can be therapeutic in these troubling times.