State-building meets dignity : an examination of the European Union's conceptualization and externalization of the concept of dignity

(1)

State-Building Meets Dignity: An Examination of the European

Union’s Conceptualization and Externalization of The Concept of

Dignity

By: Paige Kennedy Van Valkenburgh

MASTER THESIS: Political Science: European Politics & External Relations COURSE: Human Rights Norms and Global Governance

STUDENT ID: 11596996 PROFESSOR: Gordon R. Arlen SECOND READER: Paul Raekstad

(2)

2

Abstract

This thesis combines two areas of study: first, our understanding of the concept of dignity and second the European Union’s (EU) role in state-building in the Middle East and North African (MENA) region. Both topic areas are complex and unique in their own way, with one being more of an abstract concept while the other requires a practical conceptualization and execution. The goal is to combine both areas and further their academic perceptions. A way to fuse both disciplines is to take the theoretical concept of dignity and turn it into a practical tool for the EU’s state-building toolbox. By merging both issues, scholars can obtain a better understanding of how the EU values their concept of dignity while also expanding the EU’s competencies as a state-builder in the MENA countries transitioning into democracies. This thesis concentrates on three areas, first the three dimensions of the concept of dignity including the moral, political, and legal understandings, second the EU’s conceptualization of dignity, and finally a case study, where I hope to gain a new perspective on how dignity can be a multifaceted practical concept within the EU’s current efforts to facilitate a political transition in Libya.

(4)

4

Introduction

The concept of dignity is often referred to as being vague and empty, or a full and too complex concept for a simple definition. In the academic sphere, dignity has been discussed as a moral, political, and legal concept, but there seems to be some difficulties harnessing the

concept’s practical side. Therefore, this thesis aims to examine the concept of dignity through the mindset of the European Union (EU) in order to evaluate the EU’s future role as a state-builder in Libya. It will be shown that dignity can play a crucial role in a democratic transitioning process; therefore, incorporating the concept will enhance the EU’s state-building competence.

To thoroughly examine the EU’s conceptualization and exernalization of dignity it is necessary to break the thesis into three chapters: Chapter One: Three Sides of Dignity, Chapter Two: The European Union’s Conceptualization of Dignity and Chapter Three: Spreading Dignity: Libyan Case Study. First, I will explore the moral, political, and legal understandings of dignity. Then I will build off the conceptual background of dignity to analyze how the EU’s internal and external policies and laws are explicitly related to dignity, equality, and third-party nationals. Here, I will also analyze the court cases from both the European Court of Human Rights and the Court of Justice of the European Union; cases which provide an understanding of how the EU’s court, but also the Council of Europe, (which is highly respected by the EU) have legally interpreted dignity. Using the findings in the first two chapters, I will then analyze what it takes to be a state-builder by examining Libya’s situation as my case study. This will allow us to confront some important questions such as; what is the EU’s current capacity as a state-builder, in its southern neighborhood (i.e. Libya) and to what extent can dignity be utilized as an EU state-building tool?

Chapter one will focus on what dignity means from moral, political, and legal angles by analyzing dignity in all three dimensions. I will focus on how Immanuel Kant and Samuel von Pufendorf have morally conceptualized dignity. Kant’s quick answer to who has dignity is “morality, and humanity insofar as it is capable of morality is that which alone has dignity” (Mahlmann 2018, p.4). Furthermore, when it comes to Kant’s categorical imperatives which is an “[action] done for its own sake, not because of an interest in the object the action insofar it is agreeable;” (Mahlmann 2018, p.3). Three versions of Kant’s categorical imperatives will be

(5)

5 evaluated. While von Pufendorf contributes a moral argument for dignity by focusing on natural law through human nature and equality.

In addition to well-known political theorists, Chapter One will also analyze the political and legal sides of the concept of dignity, through several significant academics who have written on dignity. Dignity has transformed into a robust political concept for instilling democratic values, leading to legal commitments to protect dignity. Therefore, I will look at the relationship between dignity and constitutionalism. As Catherine Dupré argues, “the foundation on dignity has… shaped a whole range of procedures and institutions designed to ensure that the

government in power does not stray from the founding promise and that the evolving

understanding of this promise can be discussed in a democratic manner” (Dupré 2013 p.324). For newly formed democracies, the concept of dignity provides a structure for future growth and development.

However, dignity is multifaceted, and Dupré recognizes this through the political and legal understanding of dignity. Dupré acknowledges that “dignity as a judicial concept has often been criticized for the fact that it can support both sides of the argument” (Dupré 2012 p.272). The complexity runs throughout the different dimensions of dignity, and Peter Häberle grasps the structure dignity creates for the political and legal dimensions. Häberle through a Kantian

understanding, perceives “the ability to set one’s own ends and to self-determine, implies the ability and the right to take part in the democratic decision-making process; democracy, therefore, becomes the ‘organizational consequence of human dignity’” (Dupré 2012 p.264). This organizational consequence of human dignity contributes to our understanding of how dignity can be exported and utilized in transitioning countries; therefore, possibly implies that dignity can cross over and become a practical state-building tool. The last piece in this first chapter is comprehending the legal limitations of dignity. There are three limitation levels to dignity (Mahlmann 2013, p.611), which includes; no limitations, meaning dignity stands alone, some limitations, meaning when other rights (i.e., freedom of speech or religion) can replace dignity allegations, and the last limitation is differentiation, this occurs when two different ideas of dignity collide. This last puzzle piece of dignity will help set up Chapter Two on the EU’s conceptualization.

(6)

6 Chapter Two concentrates on how the EU values and conceptualizes dignity as a

fundamental right. The discussion first, concentrates on how and when the EU came to value and recognize the concept of dignity, by focusing on the EU Charter of Fundamental Rights (2000) and the codification of dignity in the Lisbon Treaty (2009). Next, I will analyze the EU’s internal and external policies and laws by looking at the EU Directives that contain dignity and concern both EU citizens and non-EU citizens. Furthermore, I will analyze how the EU has taken this philosophical concept and translated it within the EU’s institutions. Although reading and interpreting EU documents has a level of bias and diplomatic understanding to them, it nevertheless, beneficial to anyalze to get a sense of what the EU entails to do to support their transitioning neighbors. The final section in this chapter focuses on European based court cases, to shape an understanding of how EU and European based institutions comprehend the concept of dignity based on established EU laws and regulations.

Finally, in Chapter Three, a case study of the EU’s state-building efforts in Libya will be used to see how the EU’s concept of dignity can be externalized to benefit the Libyan democratic transitioning project. As Dupré argues, “the concept of human dignity is…at the forefront of safeguarding meaningful democracy and is reshaping its significance by protecting human beings’ unique identities and interactions” (Dupré 2012 p.265). This line of thinking is necessary when it comes to the current transitioning project in Libya. Libya is at a standstill for the most part when it comes to their democratic transitioning process. In fact, Libya might be moving backwards in its transition process, with the fighting recently starting up again. The Libyans currently are without a functioning constitution and are operating under a draft constitution that they have been working on for the past three years. In this context, should the EU aspire to be a state-builder at all, do they have enough support and influence to become a player on the

ground? These questions will be answered by inspecting the current EU relationship with Libya, along with enquiring the problems of the EU being a state-builder such as neo-colonialism and other related issues and concerns. Currently, the EU Border Assistance Mission in Libya,

(EUBAM) which has been going on since May 2013 and has been extended until June 2020 will be examined along with various statements from EU officials on how the EU views its

(7)

7 At the end of this thesis, I propose that dignity can become more than an abstract concept, but a practical state-building tool. Now is the time for the EU to step up and commit fully to helping Libya finish their transitioning project into a democratic and dignified state. As, George Kateb once stated, “[the] greater the suffering that a society may inflict on people within or outside its domestic jurisdiction, the more urgent the question of human dignity becomes” (Kateb 2014 p.20).

(8)

8

Chapter 1 Three Sides of Dignity

According to George Kateb, “the idea of human dignity may be at odds with itself” (2014, p.5). Certainly, there are many sides to the concept of dignity. Dignity lacks a universal definition in all disciplines of studies and understandings. However, the concept of dignity can be shaped and utilized in issues concerning equality and justice. In this chapter, the concept of dignity will be analyzed from a moral, political, and legal point of view to find out how dignity became valued, protected, but also a limited concept. In the first section, the ethical and moral implications will be explained through Immanuel Kant and Samuel von Pufendorf’s views on dignity. In section two, I will then explains the political side of dignity by examining the relationship between dignity and the push for constitutionalism after the fall of the Soviet Bloc. Finally, in section three, the three different models of legal limitations of dignity will be

evaluated.

1.1 Moral & Ethical Implications

To first understand the concept of dignity, the question of where do the roots of dignity stem from has to be answered? The answer starts by examining how morally and ethically dignity came to be conceptualized. Immanuel Kant is one of the leading theorists on dignity and Kant believes that dignity is a fundamental idea (Kateb 2014). He has taken the concept and has attempted to answer and explain many moral questions, through using a dignity-based argument. By looking at Kant’s conclusions of dignity and his categorical imperatives, the groundwork of dignity can start to be laid. As stated, earlier in the introduction, Kant does identify that anyone who or what is capable of morality and has humanity has dignity (Mahlmann 2013). Kant infers that all human beings at least, have the right to dignity once they are born, but it also implies that dignity can be something that can be taken away if one loses morality and humanity in any capacity. For example, Kateb recognizes some ways where the right to dignity can be infringed upon by societies, governments, and institutions (2014). Kateb stated that the “extreme will to deny the humanity of targeted groups grow out of ideologies and elaborated fantasies that congeal in revulsion and bottom-less concept of the afflicted groups and results in their delegation” (2014, p.20).

Moving further into the Kantian understanding, we need to look at his categorical imperatives. First, what does Kant mean by categorical imperative? A definition of categorical imperative comes from Matthias Mahlmann who states that a categorical imperative is an “action

(9)

9 done for its own sake, not because of an interest in the object the action insofar it is agreeable” (Kant 1785 via Mahlmann 2018, p.3). The categorical imperatives refer to the golden rule, but Kant’s meaning goes beyond the standard golden rule of treating others as you wish to be treated. The golden rule in this regard is one-sided, and Kant’s categorical imperatives expand the golden rule by bringing to light the concept of duty to oneself, loved ones, and strangers. The following three versions of the categorical imperative relate to the concept of dignity:

Version one: ‘Act only in accordance with that maxim through which you can at the same time will that it becomes a universal law.’ Version three: ‘Act as if the maxim of your action were to become by your will a universal law of nature.’ Version two: ‘So act that you use humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means’ (Kant 1785 via Mahlmann 2018, p.3-4).

The first version refers to setting a universal norm, only if it means that it makes sense and is compatible with others. Mahlmann gives an example; if you want to lie to someone, then you must accept that others will be lying back to you. Therefore, in the case of dignity, it is essential to meet other morals but also your own. Kant’s third version relates to the first because it infers the responsibility of setting an example for behavior. One can connect this to dignity because this imperative implies people have to set standards that respect not only their moral code but also the moral code of others. Finally, the second categorical imperative is about respect, respecting others’ moral codes. Everyone is an end to their own mean, therefore, everyone has their personal dignity that should also be respected by others. Kant’s second categorical imperative relates to the concept of dignity, by referencing at an individual shape their own worth and other people need to respect the worth of others, especially if in return they want to be treated in a dignified and respectful manner.

Another philosophical view of dignity comes from additional German-born scholar Samuel von Pufendorf. Von Pufendorf found dignity to be an innate, natural, and inherent feature that every individual possesses, and he also indicates that threw dignity, every individual has the right to equality and freedom. (Anon 2015) The concept that overall encompassed by von Pufendorf is natural law. He stated in Of the Law of Nature and Nations, “[for] there can be no virtue in an action where [there is] no reason. Nor do we pretend to maintain, that the law of nature obliges a man to prefer the lives of others to his own; especially supposing the cases and circumstances to be equal” (von Pufendorf 1685 via Anon 2015). Von Pufendorf seems to be saying that no human is better than another; all humans are equal. However, one might question

(10)

10 that everyone is not equal because of their, economic, political, social, cultural, and even civil status in society. Does having money or cultural identity have enough pull to make people be treated unequally? Personally, no amount of money or cultural differences should allow or tolerate being treated differently. Humans all have dignity and dignity needs to be universally respected and protected no matter if you are underprivileged, middle-class, or affluent because, at the end of the day, all humans are the same and want to be respected.

The following passage highlights von Pufendorf’s view on dignity:

Man is an animal which is not only intensely interested in its own preservation but also possesses a native and delicate sense of its own value. To detract from that causes no less alarm than harm to body or goods. In the very name of man, a certain dignity is felt to lie, so that the ultimate and most effective rebuttal of insolence and insults from others is ‘Look, I am not a dog, but a man as well as yourself.” Human nature, therefore, belongs equally to all and no one would or could gladly associate with anyone who does not value him as a man as well as himself and a partner in the same nature (von Pufendorf 1658 via Mahlmann 2018, p.3).

This passage expresses that von Pufendorf thought highly of dignity, and he believed that humans need to guard against violations of dignity. Dignity in this passage is expressed to all equally. The most substantial sentence in the passage above admittedly is, “Look, I am not a dog, but a man as well as yourself” (von Pufendorf 1658 via Mahlmann 2018, p.3). Here we can see that people need to see each other and treat each as equals since at the end of the day we are all humans who need to be respected as humans with dignity. It is seemingly simple, yet, times of war, conflict, or even ‘peace’ people still have their fundamental human rights violated because dignity is missing; therefore, equality cannot be achieved in society until dignity becomes a part of the dialogue.

Von Pufendorf has written about the life of a human being and how people are living for themselves, but also the good of society. He wrote, “we do not only live to ourselves, but God, and human society; if either the glory of our Creator or the safety and good of the general community require the spending of our lives, we ought willingly to lay them out on such excellent uses” (von Pufendorf 1685 via Anon 2015). Human beings live for society, a higher power (depending on one’s personal religious/spiritual choice), and themselves. Von Pufendorf in Of the Law of Nature and Nations, stated: “a man should voluntarily expose himself to a probability of losing his life for others; provided he hath good hopes of thus procuring their safety, and that they are worthy of so dear a ransom” (von Pufendorf 1685 via Anon 2015). This

(11)

11 opinion might be controversial to some individuals since it means giving up your life to save others. However, there are two points, which can be counterpoints, to respond to the above statements.

The first point relates to militaries and the soldiers who fight for freedom. Military services can be voluntary or mandatory based on the country’s specific regulations. The United States of America (US), for example, has a voluntary system; however, once boys turn 18, they must sign-up to the Selective Service, otherwise known as the draft pool. Women do not have to sign up, which only opens another discussion regarding gender. Other countries, such as South Korea, have a compulsory requirement for their male citizens between the ages of 18 to 28 to serve. The reason military service is important is that soldiers are on the front lines fighting, killing, and helping based on protecting their homeland. Soldiers either choose to sacrifice their lives for the greater good of their respective country or are obligated to do so, but either way, the risk of their own life for others safety and well-being occurs because soldiers have the capability to not only protect the dignity of people but to also take it away.

The second point comes from Michael Sandel’s book Justice: What’s the Right Thing to Do? (Sandel 2009) In this book by Sandel, there are multiple theories he brings to light. One of the more knowledgeable ones is “The Runaway Trolley” (Sandel 2009, p.21), where Sandel presents this thought-provoking theory.

Suppose you are the driver of a trolley car hurtling down the track at sixty miles an hour. Up ahead you see five workers standing on the track, tools in hand. You try to stop, but you can’t. The breaks don’t work. You feel desperate because you know that if you crash into these five workers they will die. (Let’s assume you know that for sure.) Suddenly you notice a side track, off to the right. There is a worker on the track, too, but only one. You realize that you can turn the trolley car onto the side track, killing the one worker, but sparing the five. What should you do? Most people would say, ‘Turn! Tragic though it is to kill one innocent person, it’s even worse to kill five.’ Sacrificing one life in order to save five does seem the right thing to do (Sandel 2009, p.21).

However, what is the right action to take? Would you stay on course letting fate take charge or would you make the deliberate choice of deciding the worth of the one’s life compared to the five? What makes one individual life worth more than five individual lives? Sandel trolley problem above brings undertones of the concept of dignity forward. The trolley theory brings to light the way humans view the worth, justice, and sacrifice of another human being, which are encompassed under the dignity umbrella. How would or could von Pufendorf or Kant answer

(12)

12 Sandel’s runaway trolley theory? Would killing the one be better for society or would killing the five? Kant and von Pufendorf are both morally based theorists, where they understand the means and ends are different for every individual, but that we need to treat others with respect.

Therefore, how can someone determine if the five are better than the one in society? Personally, letting fate take control is the best option because making the choice to switch the track to kill the one seems to be a bigger violation of one’s dignity.

However, “[s]ome thinkers [even] dislike the idea of equal human dignity of all persons because they think that people have to earn their dignity by being moral and may forfeit their dignity by being immoral” (Kateb 2014, p.109). What does this say about the soldiers or the people who choose to kill one over accepting fate? Having dignity should not be something people can take away from another. There are difficulties because everyone has their idea or standard for respecting their personal dignity. Dignity will always be one of the few terms that will never have a clear-cut definition; thus, a general understanding for everyone to follow is impossible. But this does not mean that a minimum understanding of the concept of dignity should be ruled out, if anything a minimum universal understanding of dignity can be the start to helping diverse groups and cultural traditions in developing states understand each other’s better for more effective cooperation, conversations, and trust for building up their new state. To what extent, can a minimum standard definition be created for the concept of dignity? Many scholars and international communities have tried to come up with a universal understanding of dignity. Unfortunately, I have found that those who have tried are unsuccessful. Due to the fact the no one in the academic field can agree, there is either always something wrong or missing in the proposed definition. Dignity has so many different connotations from many moral, social, cultural, political, and legal understandings around the world, so as of right now, the concept of dignity can be universally recognized, but will cannot be universally understood. In the next section, I will discuss how dignity was once a political struggle in Europe and international communities but has grown to be recognized as a political concept.

1.2 Political Struggles

The concept of dignity as a political notion has been referred to as “human dignity as an element of political struggles” (Mahlmann 2018, p.1). This struggle is mainly related to setting the standard for protecting the concept of dignity in democratic societies. After the end of WW2 and again after the fall of communism of Europe, the concept started to become a part of

(13)

13 democratic societies, usually through constitutionalism if not through international doctrines. Dignity can be found in many political doctrines including international declarations such as the Universal Declaration of Human Rights (UDHR, 1948), the United Nations’ International Covenant on Civil and Political Rights (ICCPR, 1976), International Covenant on Economic, Social and Cultural Rights (ICESCR, 1976), and Convention on the Rights of Persons with Disabilities (CRPD, 2008). From the domestic political view, there are 153 of out 200 known constitutions around the world that include dignity in some capacity (Constitute Project 2019). In fact, a “foundational connections between dignity and democracy are explicitly made in some constitutions” (Dupré 2012, p.167) making dignity a plausible tool for creating and maintaining a democracy. In this section, the political struggles will be fleshed out through various academic perspective and constitutionalism after the fall of the Soviet Bloc. Crucially, dignity was one of the three significant factors, along with liberty and equality, in helping post-communist transition countries find and adapt to democratic norms and values.

According to Matthias Mahlmann, dignity as a political concept is a struggle. (2013) Mahlmann argues that “dignity has a distinct political dimension that points in the same direction: whatever the changing currents of ethical and legal debates may be, it is hard to imagine that any serious political initiative aiming to reform international human rights law by removing references to human dignity would have any chance of success” (2013, p.593). However, from a political perspective, does dignity need to be multidimensional? A political concept of dignity will be varied because of all the political differences and interpretations around the world. For example, more modern constitutions, dignity more likely to be

incorporated and protected. Dignity should be used to promote human rights norms, democracy, or at least a democratic hybrid. The hope is that if dignity remains at the forefront of politicians and government official’s mind, this way reforms can take place more easily and be achievable.

However, how does the concept of dignity become political relevant? Many academics, including Catherine Dupré (2012,2013), George Kateb (2014), and Jacob Weinrib (2017) have emphasized the critical struggles the concept of dignity brings to political affairs. All three scholars discuss the complicated but complementary relationship between dignity and

constitutionalism. Even Dupré has become the person who “formulated an exposition of human dignity as the organizing of the European constitutional project” (Weinrib 2017, p.13).

(14)

14 According to Neomi Rao, “[implementation] of the relational aspect of dignity (or dignity as a constraint) demands that state policies may weaken individual liberty and autonomy, and that could trump inherent dignity” (Steinmann 2016, p.18). Therefore, stepping back a step, of how dignity is conceptualized in a constitutional project will bring to light how dignity then can be put to its limits.

Dignity is a vague concept to define, but constitutionalism is defined as “attempt[ing] to avoid… dangers by designing mechanisms that determine who can rule, how, and for what purposes” (Bellamy 2017) under a government’s constitution. According to Kateb, “the political aspiration of constitutionalism is morally great; it is for justice” (2014, p.64). There are

interconnected links between dignity and justice since in most occasions, seeking justice comes from one’s dignity being violated in some way. The importance of a constitution becomes relevant because a constitution needs to be fair, just, and operational for people seeking remedies to possible injustices. Constitution-building is a crucial aspect of all transitioning and state-building countries. More than half of the constitutions known in the world have, in some way mentioned dignity or human dignity in some capacity (Constitute Project, 2019). Some

constitutions are more extensive in showing the concept is worthy of constitutions protections, while other constitutions seem to have included dignity generally and possible just included dignity for a pop of contemporary wording. I suggest we should not jump to any conclusions because to some degree during the translation process, constitutional wording and means are lost in translation. Undoubtedly, the increasing support of dignity is significant acknowledgment considering the vagueness in the concept; it has been politically pushed and placed in constitutions around the world.

Constitutions and human rights documents have included dignity, or human dignity in some capacity yet Neomi Rao explains that even with the addition of the UDHR, ICESCR, and ICCPR, the inclusion of dignity signals the

[r]epresenting claim for the recognition of dignity are the third-generation solidarity rights, which create a political demand for the state and individuals to respect and give legal effect to human beings' personal choices. The individual's freedom can be limited in [favor] of the dignity of his community in concrete cases. But the recognition of dignity goes further than the mere protection of individualism, in that there is a constant shift of and eventual balancing between the

(15)

15 With the expansion and clarification, the internationally recognized documents hold, dignity seems to be in a political standoff. I would not go as far as to say it is checking off a box because the concept of dignity seems to be a rising concept ever since the end of WW2 and to many degrees, the concept is still evolving on its face. Surely, dignity has done so much to improve the political sphere, especially for the expansive of fundamental rights. Now with continuous

technological and scientific developments, the concept of dignity is being questioned in a whole new angle.

From a political theorist standpoint, Weinrib offers an understanding of the

constitutional- human dignity relationship. He finds that “[t]he task of a constitutional theory of human dignity is not to justify that concept, but to give an account of how that concept justifies the modern constitutional state…justification consists in the relationship between a general principle (or set of principles) and the ordered sequence of particulars that it supports.” (Weinrib 2017, p.20). The relationship does not rely heavily on clearly defining dignity, but a better understanding of dignity or a more clear definition would assist judges and lawmakers when forming judgments on existing laws and drafting laws. Weinrib recognizes a solution right away, and he sees that “[o]nce the meaning of human dignity has been formulated the coercive power of the state is enlisted to compel persons to pursue the relevant end” (2017, p.6). Moreover, as I all acknowledged earlier, humans all have ends that are unique to themselves and with a possible well-formed understanding of the concept of dignity, the state, and the public would significantly benefit. This entails going beyond the standard inherent talk and laying out some general dignity specific protections. There are some attempts of this through outlawing torture, protecting

working conditions, respecting people with disabilities, and explicitly stating ‘inherently dignity’ is significant because it lays out that everyone starts on the same terms and will remain the same on a ‘dignified level.’ Politically it looks good, but the political struggle to get the international conventions, declaration, and national constitutions to be detailed and explicit is more of a battle. Consider if dignity applied correctly can help transform a country as we can see positive changes as in the EU’s democratic constitutionalism movement after the fall of the Soviet Bloc.

In the late 1980s and early 1990’s the collapse of the communism hit Central-Eastern Europe. Once these countries become liberated, the transition to democracy started. All the countries have their own unique story, but many had the same goal to be able to become a part of

(16)

16 the EU. The EU, in return by assisting in supporting efforts get countries up to democratic

standards. Even though the EU went through a few changes itself during the years of transition and enlargement. Dupré, “presents human dignity as the concept that unifies and propels the constitutional practice of Europe’s supranational institutions—such as the European Union and the European Court of Human Rights—and the constitutional transformations of its member states” (Dupré 2015, p.11). Also, Kateb views the “European Union… [as] an inspiring

achievement… States retain sovereignty that is constrained not only by constitutionalism but also by moral restrictions on the independent use of force” (Kateb 2014, p.78-79).

The Hungarian experience is noteworthy and will provide insights in Chapter 3 when the Libyan case study is discussed. Dignity was a successful tool in the Hungarian transition because dignity allowed Hungary to break down its Soviet past by placing the Hungarian population desires for democracy as the center focus. However, with the recent constitutional overhaul in 2011, Hungary’s Fundamental Law has created some democratic backsliding. First, Hungary’s 1989 post-communist constitution, according to Kriszta Kovács, “had the potential to facilitate democracy and free markets and to ensure equal protection to all persons” (Kovács 2012 p.170). However, Hungary’s Fundamental Law, “change[d] the characteristics of Hungarian

constitutionalism, abandoning the idea of a secular state based upon liberty, equality, and

democracy” (Kovács 2012, p.170). Also, the concept of dignity changed dramatically, because it was referred to as an inherent right in the 1989 Constitution, but “[u]nder the Fundamental Law, dignity is no longer an inherent” (Kovács 2012, p.165).

Catherine Dupré has written on Hungary’s post-communist transition and has analyzed the Hungarian 2011 constitutional overhaul. In her chapter on “Human Dignity: Rhetoric, Protection, and Instrumentalization” in Gábor Attila Tóth’s Constitution for a Disunited Nation, she goes through both the 1989 Constitution and Hungary’s Fundamental Law (2011) breaking down how dignity played a part in both the transition and reform processes (Dupré 2012). Dupré in her chapter, she discussed how Hungary’s understanding of dignity seems to have become even ambiguous compared to the EU standards it had to meet to become a member, especially changing its constitutional articles on workplace dignity and health-care dignity. Besides, Dupré mentions that “the Fundamental Law has arguably omitted… [several] mentions and rights which form an essential part of dignity’s normative construction in European constitutionalism”

(17)

17 (2012, p.162). Even though dignity has remained in Hungary’s Fundamental Law, through the constructions of “dignity as a human quality, shared by everyone…” (2012, p.148), but

according to Dupré, the role of dignity in Hungary’s new constitution is still not entirely clear and does not meet the EU Charter’s standards (2012).

Consequently, what does the Hungarian example mean for this context of the relationship between constitutionalism and dignity? It shows how dignity has become distorted after years of trying to get it recognized and respected, with EU guidance and support through the EU’s normative power mechanism. The 1989 Hungarian Constitution had EU democratic standards, but according to Dupré the

Fundamental Law lacks a number of rights that make up a more comprehensive definition of human dignity in European constitutionalism, namely some components of the normative core of this concept under the European Convention on Human Rights and the EU Charter of Rights, the definition of dignity as being an “inherent” quality to humanity, and perhaps more problematic of all, the connections between dignity and the foundations of democracy (2012, p.163).

In Dupré’s statement above, the relationship between dignity and constitutionalism is fragile. There happened to be enough wiggle room left in the 1989 Hungarian Constitution to allow for possible non-democratic changes in the future. One would not necessarily think that dignity would be something worth distorting or changing since Hungary once recognized it as inherent, but the context of the concept of dignity was effectively changed and showed a lack of critical pieces of the EU’s norms and values.

The Hungarian example sheds some light on the changes and backsliding of democratic and EU values and norms. Hungary’s newly formulated “Fundamental Law does not lay the foundations of democracy in its commitment to protect[ing] human dignity and human rights and therefore differs from European constitutional practice after WWII and dictatorships in Southern and Central Europe” (Dupré 2012, p.167). The EU can be said to utilize the concept of dignity frequently since the EU has helped to influence democracy in its newer members. As Dupré argues, “[c]onstitutionalism and democracy cannot be reduced to the sole text of the

[fundamental constitutional] norm and good practice and culture sometimes arise out of

constitutional drafting of… uncertain democratic quality” (2012, p.169). This sentence by Dupré lays out the idea that possibly the EU norms and values might be able to stop backsliding if the end-product is not stable enough. It is unclear what dignity as a tool can do unless it is put into practice. However, any progress forward is progress, no matter how small or large. The fact that

(18)

18 Hungary has been backsliding does not mean other countries built on dignity will do the same. Plus, Hungary has been able to grow despite the political struggles even though “politics has become a beauty contest of public indignations” (Sajó 2011, p.11).

1.3 Legal Limitations

The final side of dignity I will explore here is the legal limitations or lack of limitations placed on the concept of dignity. When it comes to the legal limitations, there are three

categories including no limits, some limitations, and differentiation (Mahlmann 2018). In this section, I will discuss the three legal limits and the legal boundaries surrounding the concept of dignity using what we learned in both the moral and political sections in this chapter. I will start breaking down the legal understanding of dignity through the mindset of judges to hopefully find out where and how the legal line of dignity is being drawn.

There are three legal limitations of dignity; no limitations, meaning dignity stands alone, some limitations, meaning when other rights (i.e., right to life or the prohibition of torture) can replace dignity allegations and the last limitation is differentiation, this occurs when two different ideas of dignity collide(Mahlmann 2018 p. 6). Dignity violations vary according to an individual’s understanding of the concept. Differentiation is more complicated when and “if constitutional courts continue to rely on human dignity, judges must choose between different understandings of dignity” (Rao 2013, Abstract). Judges are supposed to be unbiased but when two different understandings of dignity come to play the judges have to draw a line, and it is hard to do this unless there are other stronger claims the judge can lean on and avoid ruling on dignity claims. However, drawing a line cannot be easily avoidable, and judges who are ruling on dignity are in turn drawing and creating lines for the concept of dignity, ultimately leading to more confusion about where the line of dignity can be drawn in the legal sense.

It is a start that some scholars acknowledge the three broad legal limits drawn out for the concept of dignity. However, according to some scholar’s dignity cannot be fully understood until it can be justified. The concern stems from “nothing can justify anything else until it has itself been justified” (Weinrib 2017, p.19). How can the concept of dignity be justified? It seems impossible that the concept of dignity will one day be defined to everyone’s satisfaction. Dupré argues that “respecting dignity is that one size does not fit all” (2012, p.269). In which I agree because everyone has their own idea of how dignity is to be respected and how it could be

(19)

19 violated by others or by the government. On the other hand, a personalized conceptualization makes dignity a problematic concept to protect and respect while trying to meet a level of satisfaction.

Kateb mentioned in his book that “the moral aim is to provide not as much pleasure as possible, but as much freedom, and freedom matters for much more than the avoidance of

frustration and the pursuit of pleasure” (Kateb 2014, p.102). As I mentioned at the end of the last section, creating a minimum understanding has been challenging, but if scholars keep trying to formulate an unambiguous agreeable standard for dignity, then they should follow Kateb statement above. The universal meaning of dignity cannot be focused on what dignity can bring but what dignity can protect. That is how rights should be understood, as freedoms without frustrations. Otherwise it leaves gaps for misuse. For example, in the US Bill of Rights, the First Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (1789). It only states that the government is not allowed to create laws that will infringe on these four practices. In this example, I view these as ‘pleasures’ and not as rights that are being protected from unnecessary government restrictions. Because I find it very interesting that it does not state these four expressions as rights. I understand the First Amendment to infer that these pleasures of exercising religion, speech, press, and assembly will be respected, but only to an extent because Congress has the power to place limits on these four pleasures. Making me question, should dignity be viewed as a pleasure or as a right/freedom? In the case of dignity, right now the only parts we know are, it is inherent, inviolable, a value, fundamental, to be respected, and protected, but beyond that, the concept lacks a more profound political and legal meaning.

Scholars from all disciplines have tried to formulate a working definition; unfortunately, the wording has not been agreed upon. This issue is due to the multiple moral understanding and political motives that the concept of dignity has encompassed. According to Kateb, “[the] value of a human life is not calculated by reference to the sum of pleasures and pains that a person has or can expect to have” (2014, p. 91). Therefore, when a claim for dignity comes forward, how can a judge hear a case and rule impartially? This issue usually is solved by the concept of

(20)

20 proportionality. Conferring to Weinrib on the concept of proportionality, he concludes that “proportionality responds to a moral problem raised by interpreting the protections that rights afford purposively in reference to the overarching idea of human dignity” (2017, p.16). Dignity might not be clear-cut concept but using proportionality as a tool to help guide a legal

understanding of dignity in cases where two-person ideas of dignity come head to head can be beneficial. Would utilizing the concept of proportionality work? Possibly because it would allow more judges to come up with more win-win outcomes instead of a win-lose outcome. However, practically using proportionality in dignity cases can create issues when conflicting morals or political mindsets enter the legal sphere.

Deciding where to draw the line for dignity is tricky. Weinrib hints at a possible answer by pointing out, “[t]he question of whether the infringement of a right can be justified

presupposes a prior finding of an infringement” (2017, p.16). I understand this to mean that some infringements are not infringements to others, thus making it hard to find a boundary line for dignity. Take Kateb’s moral view that “some thinkers dislike the idea of equal human dignity of all persons because they think people have to earn their dignity by being moral and may forfeit their dignity by being immoral” (Kateb 2014, p.109). Now take Kateb’s political view “the give-and-take of politics suits matters of public policy where rights are not at stake, but when they are at stake, and a definitive official decision has to be made, judicial reasoning is the appropriate way to make it” (Kateb 2014, p.76). Both trains of thought by Kateb, create issues for dignity because it shows how the concept has not brought people together but instead has caused judicial systems to settle disputes between the moral and political understandings of what it means to have dignity. However, Mahlmann suggests, that Kant’s “Categorical Imperative is a principle of autonomy because human beings have to obey only such norms that they have created themselves by their practical reason” (Mahlmann 2018, p.4). Therefore, if there is an alleged moral or political infringement of dignity, then the violation must show practically and clearly that it goes against the norms the institution has formulated for itself. Moreover, if there is a significant issue, the burden of clarification should be on judges to make the final verdict.

Even though the conceptualization of dignity can range among the institutions, two objectives remain constant pieces, which can be found in recognized and respected international doctrines. The first piece is found in the UDHR, which set the first international standard for

(21)

21 dignity, by having it included in the preamble twice, mentioned solo in Article 1, then brought up again in a more backup capacity in Articles 22 and 23. Dignity was codified, along with the other rights and standards set out in the UDHR in Article 30, by clarifying that “[n]othing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any rights and freedoms set forth in herein” (UDHR 1948). The second piece of conceptualization, can be found in some capacity in many of the UN’s conventions, or covenants that dignity is inherent and a state needs to

“[consider] the obligations of state under the Charter of the United Nations to promote universal respect for, and observance of human rights and freedom” (ICESCR, 1976). These two

documents are examples of the contributions and recognition dignity has received at an

international level. The international recognition has influential powers, possibly even a level of normative power, and making countries recognize certain rights and standards. Also, dignity in some capacity has been one of these concepts’ countries have taken and included, binding dignity in constitutional protections to safeguard or at least recognize the concept.

Setting a legal standard or defining an ambiguous concept of any kind is hard, but, is a general mention of protecting and respecting dignity through inherent acknowledgments enough of understanding? When it comes to dignity Dupré finds that trying to “[identify] a clear legal meaning for the term dignity is a notoriously difficult scholarly enterprise, mainly because this concept has often been understood in connection with a wide range of other concepts…” (Dupré 2013, p.325). Moreover, even though dignity has its recognition as a solo standing concept, it has been mixed in other larger concepts, such as human rights, equality, and justice. Also,

internationally made dignity violation claims gets especially tricky when the principle of the margin of appreciation is brought into the mix. The margin of appreciation principle widens the scope and discretion of human rights violations in cases that involve specific state laws and standards. We look at a case in Chapter Two that involved the court granting a margin of appreciation to the state's standard, rather than dealing with making a ruling at the international community level. This will show that even though dignity is recognized, not every institution is willing to clarify what the concept means under their interdependent yet independent

(22)

22 In this chapter, we gained a baseline into how major philosophers, political theorist, and academics view the concept of dignity. We learned that the concept of dignity stands on its own as a concept despite dealing with continuous incomprehension at the moral, political, and legal levels. In the first section, I explained Kant’s categorical imperatives and von Pufendorf’s natural law understandings of dignity. They both interpret dignity as being something all humans have, and that individuals need to, not only, respect their own dignity, but also societies. I brought in examples from the military and Sandel’s trolley theory to get us thinking about how we protect our personal dignity, but also how we are capable of taking dignity away from others.

In section two, I discussed the political struggles dignity had faced and continues to face. I mentioned several times that dignity does not have a clear definition or universal standard. This lack of boundaries has caused issues not only politically, but also legally. Dignity gaining

recognition after WW2 and the Fall of Communism has been positive for the concept. Politically the concept was used with constitutionalism to further dignity’s scope but also helped

transitioning countries in Europe. Now, that the concept has been included in more

supranational, international, regional, and local doctrines, legal complaints have started to come forward. This led me to look at the legal limits of dignity. Legally the concept has three ways of being interpreted in court, and judges do not have a clear frame of reference beside the broad inclusion of dignity in laws, policies, and declarations.

Overall, I found that currently, the concept of dignity has no boundaries. Moreover, it is questionable that dignity will ever be universally understood. Also, I acknowledged that

everyone has their idea of dignity through the moral understanding section; however, it is up to the political leaders and judges to come up with and clarify the political and legal standards. Morally it seems that dignity is something every human being has, and we must respect and protect everyone’s dignity regardless of the reason. Politically and legally more must be done to narrow down the countless conceptualizations of the concept of dignity. In Chapter Two, I will, through the mindset of the EU, investigate its conceptualization of the concept of dignity. The EU highly-values dignity and has strong normative powers that reach over to the MENA region; therefore, the EU’s conceptualization of dignity will possibly lead to the recommendation of dignity as a new EU state-building tool in Chapter Three.

(23)

23

Chapter 2 The European Union’s Conceptualization of Dignity

In the previous chapter, the concept of dignity was broken down from a generalized moral, political, and legal standpoints. In this chapter, the concept of dignity will be narrowed down from the EU’s understanding and conceptualization of dignity. According to the brief description found on the EU website, the EU views human dignity as “inviolable. It must be respected, protected, and constitutes the real basis of fundamental rights” (EU 2019). This EU definition is simple but clear cut at the surface leaves. Indeed, the EU’s understanding here remains broad, leaving the concept open to mixed interpretations even though it uses the term inviolable, inferring dignity to be unbreakable. What is concrete is that the EU values the concept of dignity; however, the question remains of how the EU truly conceptualizes the concept of dignity, particularly in its internal and external policies.

To comprehend the EU’s conceptualization of dignity, I will, in the first section of this chapter, be breaking down the inclusion of dignity in both the Lisbon Treaty (2009) and the EU Charter of Fundamental Rights (the Charter) (2000) to determine how the EU values the concept of dignity. In section two, I will then move on to how the EU has included the concept of dignity in its internal and external policies. I will analyze when and how the EU uses the term ‘dignity’ explicitly in its policies, therefore, gaining a sense into how the EU has been continuing to spread the concept internally and externally. Finally, in the last section of this chapter, I will examine several European court cases that contain dignity aspects and arguments. By looking at cases from the Court of Justice of the European Union (CJEU) also the European Court of

Human Rights (ECtHR), we will get a sense of how the valued concept of dignity has either been limited, differentiated, or upheld by EU standards of dignity.

2.1 Dignity’s Value as a Fundamental Right

The origins story of the EU is one of a single market, cooperative, incentive-based community. It was not until the end of the Cold War and the Fall of Communism that the EU started to value more rights and democratic based standards. As of today, the EU is more than the Coal and Steel Community it started off as, because now it is a community with expanded interests in protecting and spreading economic, political, social, cultural, and civil rights. Reaching not only among its members in Europe. but also to the EU’s neighboring countries to the East and South through normative power measures. First, we have to explore how the EU came to value, utilize, and continues to conceptualize the concept of dignity, before moving to

(24)

24 how the EU can go about normatively or empirically spreading dignity to neighboring countries, which will be discussed in the Libyan case study in Chapter 3.

The EU highly values dignity as one of its fundamental rights and ideas. According to Title 1 Common Provision Article 2 of the Lisbon Treaty,

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to

minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail (2009). The excerpt above on dignity was the second time the EU made it clear that dignity is a part of the EU’s core values. Moreover, this addition in the Lisbon Treaty shows the first time dignity had been codified as an EU value. I find it very interesting that dignity is the first value listed among the other five EU values. Ordering matters and for the EU to start with human dignity and end with human rights shows and proves how dignity is a concept that can stand on its own and that dignity ranks high as an EU value. Even though it can be argued that dignity can be

categorized or implied inside one of the other five values, which includes freedom, democracy, equality, the rule of law, and human rights, the EU’s separate inclusion shows that concept of dignity is substantial enough to retain its own category.

Looking further back to 2000 when the EU Charter was published, the first real

emergence of the concept of dignity appeared explicitly and officially in an EU document. The word dignity can be found in 6 different locations in the EU Charter, most notably recognized in the Preamble, and the entire first chapter of the EU Charter is dedicated to dignity (2000). In the EU Charter, Chapter One on dignity consists of Articles 1-5 and mentioned again in Article 25 and Article 31. The whole first chapter on dignity consists of the following rights and standards; human dignity, right to life, right to the integrity of a person, the prohibition of torture and inhuman treatment or punishment, and prohibition of forced labor (EU Charter 2000). Article 25 is the right to protect the dignity of the elderly to ensure their life rights are protected, and Article 31 consist of respecting the dignity of workers in their workplace conditions (EU Charter 2000). The EU Charter was a unique document since it reflected a democratic change, by including protections and setting new EU standards for human rights, dignity, and the rule of law for its citizens. Catherine Dupré mentions that in “the EU Charter ‘dignity’ is a new addition to the well-established requirement, …and its significance is not fully understood yet” (2012, p.157).

(25)

25 This point by Dupré is possible; dignity can be seen as an overarching point since it was in the preamble, then again, it was only explicitly mentioned in its specific chapter and two other articles. Article 1 is the only time in the Charter where there is an attempt to clarify what the EU indicates for the term ‘human dignity,’ it states, “[h]uman dignity is inviolable. It must be respected and protected” (EU Charter 2000), however, this is a broad understanding because the EU requires dignity to be respected and protections yet provides no guidelines to maintain dignity’s inviolable nature. Therefore, does the inclusion of dignity act as a contemporary filler term for recognition purposes or does the EU value dignity?

There are two significant contributions that possibly aided in the EU’s acquisition of dignity as a fundamental value and not as a filler concept. First, European countries back in the late 1940s, early 1950s began adding constitutional protections for dignity, and these countries include Italy, Germany, Spain, and Portugal. Germany’s Basic Law (1949) is the most notable for making dignity a standalone right, which has influenced other countries to follow suit with similar constitutional protections and recognition. The second contribution comes from the Council of Europe (CoE) formed in 1949, with the goals of protecting human rights, democracy, and the rule of law. This European based community has transformed human rights protections, by setting standards that not only helped to reshape the European and neighboring countries ideals but also contributed concepts that aided in developing the EU’s values.

Dignity was not mentioned explicitly in the CoE’s original European Convention on Human Rights (ECHR, the Convention, 1953). The phrase ‘inherent dignity’ was only first mentioned and added to the Convention under Protocol 13 on Death Penalty (2003 p.53). The first paragraph in Protocol 13 is as follows, “[c]onvinced that everyone’s right to life is a basic value in a democratic society and that the obligation of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings.” (2003 p.52) Depending on how you read this paragraph, you can think about the bigger picture and see that the ECHR recognizes that all human beings are equal no matter the circumstances, and this is because of inherent dignity. This perception is a creative way of reading the first paragraph of Protocol 13, and not everyone will agree with the theory above, which is acceptable. The way I see it is if the ECHR is against the death penalty because it violated a

(26)

26 person’s human dignity then in return it means that the ECHR understands dignity to be inherent and applicable to everyone no matter if laws were broken.

Dignity does have some roots in Europe, there are roots in European institutions, and Dupré has the inkling that dignity was born and formed in Europe (2013), but from this point of view it makes dignity look like a ‘western concept.’ While the philosophers and political theorist are mainly European, and the term dignity can even date back to an April 1848 French decree that abolished slavery because it was a breach of human dignity (1848), this shows dignity can be traced back in European history, but it is inconclusive to prove that dignity was born in Europe. However, it can be argued that the concept of dignity was molded and carried further through European history as an essential concept, even though dignity has not been easily defined or explained. Of course, dignity might be among the few concepts and ideas that can never be fully understood and remain open to each person’s interpretation. The concept of dignity is not a relatively western concept, but it has been used, studied, and expanded upon in western societies. Moreover, these mainstream ideas of dignity are being exported to areas were individuals have lived under dictatorships and authoritarian regimes.

What makes dignity appealing enough to be carried on and codified not only in constitutions and in European institutional standards? One way to figure out if the EU truly value’s dignity is to inspect, how dignity has been a part of Europe’s constitutionalism

movement for at least the last 30 years. Some scholars say that following the Fall of the Soviet Bloc created the move towards the EU’s constitutionalism triangle. According to Susanne Baer (2009), the constitutional triangle consists of three concepts, dignity, equality, and liberty. The triangle model helped transitioning countries to adapt to democracies and focus on giving their citizens power and protections. In the last chapter, I discussed the Hungarian case, where dignity was utilized in their transition. After the Fall of Communism, Hungary as a country when

through a major overhaul to change their communism past and move forward with democratic standards and ideals. The Fall of Communism between 1989-1991 was a significant change not only for the world but explicitly Europe and at the time the European Community (before the EU’s name change in 1992 through the Maastricht Treaty). According to Dupré, “human dignity was introduced in almost all post-communist constitutions in Central and Eastern Europe and it clearly had a very strong symbolic dimension” (Dupré 2003, p.7). As for the Hungarian case, the

(27)

27 country’s actors conducting the transition process were pushing for dignity to be included (Dupré 2003). In the end, the 1989 Hungarian Constitution placed a considerable burden on the duty to protect dignity in Article 8, following the Germans and the Greeks approach to codifying dignity. It seems the concept of dignity started to grow in European countries first, then becoming one of the EU’s values. Also, the EU has been able to carry dignity forward and ensure that more European countries include the concept of dignity in some capacity. In this next section, I will look at how the EU has carried on the concept of dignity, in the way the EU actors have incorporated dignity into the EU internal and external policies.

2.2 EU’s Internal and External Policy

The EU has issued many policies, formally known as Directives, after the publication of the EU Charter and the Lisbon Treaty. These Directives usually come from the European Council and the European Parliament; the directives cover different topics, which provides additional guidelines and clarifications. For example, some areas that require more EU clarification include discrimination, disability, and third-party nationals’ rights and standards. The term dignity has been mentioned in some of these policy documents over the years, which helps the EU continue to highlight and solidify its values and interests. For the context of this thesis, more well-known directives that explicitly used the term dignity will be discussed. There are four directives and one external policy that I have picked to inspect in this section. Overall the goal is to see how the EU has continued to shape its understanding of dignity. The four directives to be discussed fall under two categories, one being equal treatment for all individuals and the second category regards the treatment of third-party nationals in the EU. Even though the term dignity is only used once in each of these policies, it is crucial to see the way the EU

continues to view dignity, post the EU Charter and the Lisbon Treaty. The EU external policy I will look at, deals with the EU spreading norms and financial aid to its MENA neighbors, although it only mentions dignity once, in the introduction of this document. Moreover, both the internal and external policies will assist in formulating an argument for dignity becoming a state-building tool later in Chapter Three.

The two EU internal policies to explore are Directive 2000/43/EC and Directive 200/78/EC. First, Directive 2000/43/EC is on “implementing the principle of equal treatment between persons irrespective of racial or ethnic origin,” which was released by the European Council on June 29, 2000. Whereas, Directive 2000/78/EC released on November 27, 2000,

(28)

28 “establish[ed] a general framework for equal treatment in employment and occupation.” These two directives reference dignity under the topic of harassment. Additionally, the inclusion of dignity appears in the same location in each document under Article 2 §3, where the concept of discrimination is highlighted. It states in Directive 2000/43/EC that “when…unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating, or offensive

environment.” While Directive 2000/78/EC states, “when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive

environment.” There is similar phrasing between the two directives; however, there meaning can be understood in different contexts. For example, it is interesting that Directive 2000/78/EC is directly referencing Article 1 of the Charter, whereas Directive 2000/43/EC can be viewed as more direct by explicitly mentioning the effects that would cause a violation. It is also interesting to think about the use of the concept of dignity in both directives. The Directives referred to the term dignity and not human dignity. It might be nothing with both directives referring to the concept of dignity as, dignity instead of using the term human dignity. In the following two directives below about third-party nationals, the European Council used the term human dignity. I would have used human dignity in the equal treatment directives because the directives are about people specifically, or it is possible that human dignity is implied already. Overall, it makes me question if there is a difference between human dignity and dignity, or if the terms are interchangeable.

As mentioned above these two non-EU citizen-related policies take on dignity as well. On January 23, 2003, the European Council released Directive 2003/09/EC which laid “down minimum standards for the reception of asylum seekers.” While on April 24, 2004, Directive 2004/83/EC, set the “minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted” was fleshed out. The similarities between these two, third-party national and asylum seeker directives are that they use only the term human dignity and refer to the concept similarly. In Directive 2003/09/EC (¶5) it reads as being more tailored to the EU’s value of dignity since in the last line it says, “this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1 and 18 of the

(29)

29 said Charter.” While in Directive 2004/83/EC (¶10) it only states explicitly that “this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members.” One directive wants to follow and respect the EU Charter explicitly, while the other directive is a little more ambiguous referring to the EU values. It seems that Directive 2004/84/EC is a directive with intentions of providing clarification or possibly expanding the EU stance on third-party nationals, by recognizing that the EU values and standards cover both the applicants and their family. Whether it is clarifying or expanding the EU’s stance on third-party nationals, it is a positive understanding. Showing that non-EU citizens will have their dignity protected and respected during their transition into the EU sphere.

Now, that the internal policy directives of the EU have been explored, it is time to move towards how an EU external policy frames the EU’s values and interests while assisting its neighboring countries. I will look at a policy specifically targeting the regional MENA countries who were part of the Arab Uprising. These countries are significant in many ways to the EU; therefore, it was fitting that the EU created a policy offering support while these countries were beginning to peace-build, nation-build, and state-build, as part of their transition into more democratic states. The EU external policy, I will be looking at is entitled “A Partnership for Democracy and Shared Prosperity with the Southern Mediterranean” (European Commission 2011). This policy focuses on EU values and interests being externalized to the MENA region. In Chapter Three, this policy will be referenced again in the context of the relationship between Libya and the EU.

It is thought-provoking that dignity is only mentioned once in this 16-page EU document. The introduction section of the policy is where the single mention of dignity is stated. The policy explains that the EU

believe[s] that now is the time for a qualitative step forward in the relations between the EU and its Southern neighbors. This new approach should be rooted unambiguously in a joint

commitment to common values. The demand for political participation, dignity, freedom and employment opportunities expressed in recent weeks can only be addressed through faster and more ambitious political and economic reforms (European Commission 2011, p.2).

The European Commission constructed a policy in which it sets out that the EU is ready to come together with its southern neighbors to help them reform and unite under their shared common values. In the passage above, 3 out of the 6 EU values were identified, they including democracy through political participation, dignity, and freedom, however, even though there was the

(30)

30 acknowledgment that dignity was being demanded, there was no mention anywhere in this document that explicitly laid out how the goal of providing dignity was going to be achieved. Unless, by achieving all the other goals, that were explicitly expressed, were accomplished, then, in turn, dignity would be guaranteed because individuals would have freedom and protections against injustices. Unfortunately, the EU did not express this, and dignity was left unexplained.

Also, mentioned several times in this document was that the EU stands ready to help when the MENA countries are ready to receive support and guidance (2011). Whether it be to help bring humanitarian aid, financial aid, promoting a comprehensive economic strategy, managing the movement of people, even democracy and institution building, the EU in this policy document has planned out ways to support these countries in a tailored-made and incentive-based approach. In other words, “[t]he EU is ready to support all its Southern neighbors who are able and willing to embark on such reforms through a ‘Partnership for

Democracy and Shared Prosperity’” (European Commission 2011, p.2). The EU’s new approach of furthering its partnership with the southern neighbors comes as an incentive-based approached (European Commission 2011 p.5). Although this reads like more of a diplomatic document, than a external policy. And what I mean is this appealing on paper but will be realistically a struggle to get done. Indeed, there are some new pieces to this external policy, which raises the bar for future EU involvement if pulled off successfully. For example, the EU recognizes the need for “[i]mmediate and short-term help should be accompanied by long term assistance when each country is ready to indicate what it needs from its EU partners” (European Commission 2011, p.12). This acknowledgment alone is a decent start, but the EU needs to be ready to act on its promises of short-term and long-term assistance.

The EU is known as being a significant payer, but often, the EU falls short when being a real player when it comes to dealing with situations beyond its borders (Seeberg 2009).

However, in this document, the EU infers that it is willing to be both roles for these countries, but only if asked. When reading this document, I get the sense that the EU wants to follow a similar path that was used to handle the post-communist situation, when Central and Eastern countries were transitioning. The MENA countries are close neighbors with Europe, and the interests here are more economic and security-based, whereas the goal between 1989-1991 in Europe was to transform countries into prosperous democracy in any way possible. The EU has

State-building meets dignity : an examination of the European Union's conceptualization and externalization of the concept of dignity