Human dignity as a foundational value of peremptory norms in international law

Abstract

The appeal of the idea of a morally structured, systemized international legal system implied by the jus cogens regime has resulted in an abundance of literature covering different aspects of this normative category. This article discusses a comparatively under-explored issue in this field, that is, the foundational values of peremptory norms and, in particular, invites the reader to consider the value of human dignity as one such underlying value. An in-depth analysis of the definition of jus cogens as included in the Vienna Convention on the Law of Treaties reveals that the values that peremptory norms are believed to represent are intertwined with such notions as the international community, the shared interests of that community, and normative hierarchy in international law. The value of human dignity speaks to the very core of each of these notions. This is demonstrated by the wide recognition of the value in the context of states’ constitutions and broader international legal instruments, as well as in the work of international courts such as the International Court of Justice and the European Court of Human Rights. However, there is no clear understanding of the very concept of human dignity as there are many different conceptions of both the content and function of this value. This article proposes a possible common denominator in this regard, namely, the basic claim of human dignity as an ontological value in the sense of the physical integrity of a person. Mindful of its potential in the context of the development of the international community and the future of the international legal system as such, the examination of this reading of the value shows that indeed it could be considered as one of the underlying values of peremptory norms in international law.